DPP v Beattie [2020] VSC 229

2 You had originally been charged with the murder of the deceased, and a trial was due to be held on that charge. It is enough for me to note that your plea of guilty to, and the prosecution's acceptance of, the charge of manslaughter is an appropriate resolution of the matter.

3 On 10 March 2020, I heard the prosecution opening, setting out the circumstances of your offending, and I also heard submissions from senior counsel on your behalf and the prosecution about the sentence that should be imposed on you. In addition, I received nine victim impact statements from the deceased's family and friends, most of whom chose to read them to the Court.

4 The maximum penalty for manslaughter is 20 years' imprisonment. It is now my responsibility to sentence you for this offence.

5 You and the deceased had been friends since your secondary education. He lived with you, on and off, for about four or five years at 74 Southern Road, Heidelberg Heights. Also living there, at times, was your partner and her son. As at February 2018, the deceased had been sleeping on the couch in the lounge room of your residence.

6 In 2002, the deceased man sustained serious injuries to his legs in a rock climbing accident, which required surgery and the fusion of his ankle bones. He apparently experienced ongoing pain such as to prevent him from being able to work. From his Centrelink benefits, the deceased paid a portion of the rent or would get food stamps in order to contribute to the household.

7 On 27 February 2018, after returning home from work, you had several visitors; one of whom later remarked that you appeared 'pissed off' about others not paying their rent. Prior to going to bed that evening at around 9:30 or 10 pm, you informed the deceased that he would have to move out of the house within the next two weeks. You believed that your partner would be returning from hospital at that time, and you therefore wanted the deceased to leave.

8 At about 10:30 pm, your partner's son returned home for a brief period. He observed the deceased to be visibly upset about your request. He informed the deceased they would discuss the matter later and left at approximately 11:15 pm.

9 There were no witnesses to what occurred next. Neighbours heard swearing and yelling coming from the premises but did not attribute the voices they heard to anyone in particular. They thought that the argument lasted for 10 - 15 minutes. According to what you told the police, it was during this period that you caused the wound that resulted in the death of the deceased.

10 After the incident, you made two attempts to call 000 at 12:35 and 12:36 am, but neither call connected. You then rang your friend, Grant Duncan, from your mobile phone and told him you had a fight with the deceased, using the words 'stabbing' or 'stabbed'. You said you did not know what to do, and Mr Duncan said he would come over. When he arrived, he met you outside. Upon entering the premises, he observed the deceased face down in the hallway with blood over the lower part of his body.

11 Although he believed the deceased was no longer alive, Mr Duncan called 000 and requested an ambulance. He also commenced CPR upon instruction from the 000 operator. You assisted by using a towel to apply pressure to a wound near the deceased's groin.

12 Shortly afterwards, police arrived. You identified yourself to them and said, effectively, that you had stabbed the deceased. You also indicated where the knife you had used was now located.

13 You were immediately arrested and conveyed to the Heidelberg Police Station for interview. Your counsel urged me to accept your version of events as described in your interview as the factual basis for the sentence to be imposed. I do not understand the prosecution to take issue with this submission.

14 In that record of interview, you described some aspects of the evening, including you telling the deceased to make arrangements to move out of your premises. You indicated you were later awoken by the deceased talking loudly to himself about having to leave. You said you told him to 'shut up' and that you needed to go back to sleep. He then started banging on your door and tried to get into your bedroom. You said that the deceased said words to you like, 'Come out, I'm gonna fuckin' wreck you' or similar. There was no lock on the door, and you held your door closed with your body. You said the deceased eventually walked away.

15 You took the opportunity to dress yourself and confront the deceased. However, as the deceased came back towards you, you took a knife off your bedside table and again closed your door. You said the deceased tried to push his way into your bedroom and, believing he would inevitably get in, you opened it.

16 Once the door was opened, you said that the deceased came at you. In your effort to keep him away, you hit him in the hand with your knife, but this only briefly stopped the deceased. The second time the deceased approached you, you 'got him' with the knife in an area you believed to be around the chest or stomach. You said you did not want to stab him but you were 'just trying to keep him away'. You saw blood and described going outside to call an ambulance.

17 You acknowledged that, prior to getting your knife, the deceased had not physically assaulted you and had only been verbally aggressive. You also did not believe that the deceased was in possession of any weapon.

18 When police examined the scene, they located the knife underneath a vehicle parked on the lawn next to the driveway. The knife had blood on it. Its sheath was still on the bedside table in your bedroom. There was significant blood staining along the hallway and in the bathroom as well as outside in the vicinity of the garage.

19 The post-mortem examination of the deceased was conducted by Dr Sarah Parsons on 29 February 2018. She identified incised injuries to the right hand of the deceased, which she described as defensive injuries. Dr Parsons concluded the cause of death was a stab wound to the groin of the deceased, which cut through the femoral artery and caused a hole the femoral vein. She estimated that the requisite degree of force used to produce the injuries would have been moderate.

20 The toxicology analysis found the deceased had a blood alcohol concentration of .17 per cent and had cannabis in his system. There were also traces of methylamphetamine and Oxazepam in his urine but not in his blood.

21 As stated, the Court received nine victim impact statements. They were from the parents of the deceased, Lorraine and Ray Shannon; his siblings, Kylie McColl and Damien Shannon; his niece, Charlotte McColl; and his friends, Jason Anderson, Paul Harding, Michelle Chubb and Suzette Murray.

22 Each of these statements described the emotion and loss that is involved in a death like this, which was so futile and unnecessary and, yet, the consequences will be lifelong. They expressed the depth of sadness and grief that each of these people feel. Many of those who made victim impact statements chose to read them to the Court, which was a difficult and stressful thing to do. Grant Shannon was clearly a much-loved friend and member of his family.

23 I have considered each of these statements and taken them into account in determining the sentence that should be imposed on you.

24 You were born in Melbourne on 10 December 1969 and are therefore now just over 50 years of age. You are one of five children. Your father died in 2011, and your mother is still alive. You have a positive relationship with her and, until the advent of the COVID-19 pandemic, she visited you in custody. That is no longer able to occur.

25 Your education ended at the Year 10 level. You were regularly employed and have a good work history. You have expressed a desire to return to work upon your release.

26 You have had a few significant relationships, the longest of which had been with your live-in partner since 2002. According to your counsel, you do not expect that relationship will resume.

27 The Court received a psychological report written by Mr Peter Hanley of Central Melbourne Psychology. His report was the result of clinical assessments of you on 23 January and 6 February 2020.

28 Mr Hanley determined that you are a man of below-average intelligence and experience difficulty in dealing with the complexity of interpersonal interactions, which is further compromised by your substance-use problem.

29 He noted that you have been a heavy user of alcohol and cannabis since you were a teenager. Mr Hanley's conclusion was that you suffer from a severe Alcohol Use Disorder and a severe Cannabis Use Disorder, but noted you lack insight into the severity of your substance abuse.

30 He also diagnosed you with an Adjustment Disorder with mixed anxiety and depressed mood, which stems from your offending and its consequences, including the death of the deceased.

31 Mr Hanley further concluded that you display remorse for what you have done, characterised by grief, a desire to undo your actions, and concern for the family of the deceased.

32 You have a criminal history occurring between 1993 and 2009. Primarily, your offending has concerned traffic or drink driving matters and some drug possession charges. This offending also reflects your abuse of alcohol over an extended period.

33 Whilst those matters do not count to your credit, I accept that they do not have significant relevance to the charge for which I must now sentence you. You do not have any prior convictions for offences of violence.

34 The prosecution case was put on the basis that your offending was in the nature of manslaughter by unlawful and dangerous act. They have accepted that you lacked the intent to kill or cause really serious injury that would be required to prove the original charge of murder.

35 Importantly, and in your favour, the only conclusion open on the evidence is that the fatal stabbing was unintentional. You used the knife, you say, as a means of keeping him away and, in that dynamic situation, you caused the wound that result in his death. There is no evidence to indicate otherwise, and the prosecutor accepts that fact.

36 Counsel, on your behalf, relied on several features that mitigate the gravity of your offending. Although dangerous, your actions were spontaneous. You were not the instigator of the confrontation, and you genuinely perceived that the deceased man posed a threat to you. The fatal stabbing was not intentional, not premeditated, and it was not the culmination of a protracted physical struggle. You also made no attempt to conceal your actions and were forthcoming with police. I accept each of those features and have taken them into consideration.

37 You also recounted a story to Mr Hanley of an incident from three or four years ago, where the deceased man had put you in, what you described as, a 'choke hold' until friends intervened. It was not suggested on your behalf that you were apprehensive about the deceased before the incident occurred in February 2018. However, your counsel submitted that it was relevant to your subjective belief.

38 In her submissions, Miss Mahady, on behalf of the prosecution, accepted that these factors were correct but emphasised the seriousness of your actions in the circumstances. The deceased had been your friend of over 30 years, not an unknown home invader - which, you had told police, was the rationale for having the knife next to your bed in the first place. Whilst there had a verbal confrontation initiated by the deceased, it had not become physical, and he suffered from a degree of disability. You also knew the deceased was unarmed. Despite all this, you chose to arm yourself with a knife. Though I accept that he had been verbally aggressive toward you, I also accept the prosecutor's characterisation of your conduct as highly dangerous conduct in the circumstances as well as being unlawful.

39 As you concede by your plea, it was not a reasonable response to the circumstances. This was a serious crime as manslaughter always is. The danger of what you did came to pass, and the loss of life that followed was both tragic and futile.

40 As I indicated earlier, you pleaded guilty to manslaughter on 22 November 2019. Your plea could not be described as an early plea. The indictment was originally filed on 28 March 2019 after a committal on 8 October 2018. I heard pre-trial argument in relation to the issue of expert analysis of the blood-spatter patterns. It appeared, at that point, that your intention was to contest the trial on the basis that you were acting in self-defence. However, you had been charged with murder and, for good reason, did not accept that you were guilty of that offence. It may therefore be said that you pleaded guilty to the appropriate charge at the first opportunity you had to do so.

41 Your plea of guilty is obviously of utilitarian value in that a trial has been avoided. I accept that your plea also acknowledges the responsibility you have taken for what occurred and that your actions were unreasonable in the circumstances you faced.

42 Aside from your plea of guilty, there are several reasons proffered to suggest that you are remorseful for what occurred, and I accept that you are.

43 One of the documents that I have been provided with is a letter of apology written by you and addressed to the family of the deceased. In that thoughtful and emotional letter, you expressed your sorrow for what occurred and your fervent wish that it had not happened. You also reflected on his life and your friendship with him. I am persuaded that the letter reflects your genuine feelings and remorse about what has occurred.

44 I have been provided with several references from people who are your friends and are willing to attest to your character. You are described as being loyal, generous and hardworking. Notwithstanding your present circumstances, one said he would recommend you for employment if that opportunity arose.

45 In my opinion, your prospects for rehabilitation are reasonably good. You had a regular work history and your prior criminal convictions do not point to a likelihood that you will continue to offend. You have expressed genuine remorse for what has occurred and a desire to live a law-abiding life on your release. It seems clear that you have a number of people who will support you upon your release from custody, if not before. I will say more about your prospects of rehabilitation shortly.

46 Nonetheless, general deterrence and denunciation are significant sentencing considerations. It must be understood that when a dangerous weapon, such as a knife, is used in circumstances like this and death results, even by accident, the offending will be treated as serious and attract significant custodial penalties. Given the circumstances and your declared remorse for what has occurred, specific deterrence may be somewhat less significant, as your counsel argued. Given your record and background, you are not a violent person by nature, and I do not think it likely that conduct such as this would be repeated by you in the future.

47 Since March 2020, our community has been dramatically affected by the advent of COVID-19. This virus has affected the entire world with devastating results. The question has thus arisen as to how this matter might be taken into account in the sentencing process such as yours.

48 In Brown v The Queen ('Brown'),[1] the Court of Appeal said:

With regard to the COVID-19 pandemic, and the submission put forward on behalf of the applicant in that regard, we readily acknowledge that this is a matter that is certain to come before this Court again in the immediate future. In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case. [2]

49 In my opinion, the present circumstances are relevant and should be taken into account in sentencing you, notwithstanding the apparent improvement in the infection rate in Victoria as at the date of sentence. As a result, the parties made supplementary submissions on this topic on 2 April 2020, a day on which there were 273 new infections in the country and 68 in the State.[3]

50 Evidence as to the effect of the pandemic on prison conditions was received by way of affidavit sworn by Jennifer Hosking, the Acting Assistant Commissioner in the Sentence Management Division of Corrections Victoria. Mr Hallowes, of senior counsel, made further submissions, which took account of the fact that, at present, you are held at the Melbourne Remand Centre and that, after being sentenced, you will be classified by Corrections and likely moved somewhere else.

51 The matters that were relied upon as making your sentence more burdensome as circumstances currently stand were the following:

• The prospect of an outbreak in whichever prison you are held creates heightened anxiety in circumstances of forced incarceration as you have no control over measures to reduce your risk of contracting the virus;
• You are experiencing increased stress and anxiety in relation to the health of your family members and your mother, in particular, who, at age 75, is at greater risk of more serious illness if infected by the virus;
• As Ms Hosking's affidavit confirms, all personal prison visits have been discontinued and, in your case, the isolation from family makes your time in jail more difficult;
• Whilst there is the ability to make contact via the telephone and perhaps other technology, the pressure on resources and the demand from within the prison makes that challenging;
• There will be increasing isolation within the prison for inmates that will limit opportunities for work, courses or activities within the prison, which has been a significant feature of your rehabilitation.

52 In addition to those matters, Mr Hallowes relied on the practical consequences of an outbreak within the prison system. Apart from the present anxiety about that risk to which I have already referred, the conditions for prisoners would become significantly more restricted and may include a lockdown. It would be even more burdensome for any who were unfortunate enough to be infected, but did not require hospitalisation, as they would be isolated within their cell.

53 On behalf of the prosecution, Miss Mahady did not take issue with the submission that the increased anxiety and stress you are experiencing are appropriate matters to be taken into account, to the extent they were accepted by the Court of Appeal in Brown. However, on her submission, the Court should not consider prospective matters, such as a possible lockdown, for which there is, or can be, no evidence or certainty of.

54 I am sentencing you on 1 May 2020. The rate of new infections has dropped dramatically and, as at today, there remains no diagnosed case of the virus within the prison system. Nevertheless, it is also clear that the threat has not passed. All of the matters raised by Mr Hallowes on 2 April remain valid for the purpose of determining the sentence to be imposed on you, save for any matters of speculation.

55 Separately, I note that Ms Hosking's affidavit also described your activities since you entered custody, including your work history, in positive terms. Not only have you worked in the laundry but you have been involved in training other prisoners in that work. You were described as polite and respectful towards prison staff and other prisoners. She also described other activities that you had been involved in, which included sport. Mr Hallowes relied on this evidence as corroborating the assertion that your prospects for rehabilitation were good if your current attitude and approach is maintained.

56 Given all of the circumstances of this case, and being conscious of the comments of the Court of Appeal in relation to avoiding the 'shoehorning' of cases into particular ranges, [4] I do regard this as a case in which your moral culpability is lessened by the circumstances in which the offending occurred, together with the other matters of mitigation that I have referred to.

57 In all the circumstances, I consider the appropriate sentence for the offence of manslaughter that you committed is a period of imprisonment for six years and six months. That is the sentence that will be imposed on you. I fix a minimum term of four years, which is to be served by you before you are eligible to apply for release on parole.

58 I declare that your pre-sentence detention is a period of 793 days, not including today's date, and I direct that period be recorded as being time already served and entered in the records of the Court.

59 I have already made the disposal orders that were sought by the prosecution on the hearing of the plea.

Section 6AAA of the Sentencing Act

60 I declare that had you not pleaded guilty to the charge of manslaughter, and I was sentencing you after a trial on that charge, the sentence I would have imposed on you would have been eight years' imprisonment with a minimum period of six years to be served before you would be eligible to apply for release on parole.

[1] [2020] VSCA 60.

[3] It is noteworthy that this later proceeding was conducted entirely by video link in order to preserve social distancing.

[4] DPP v Weybury [2018] VSCA 120; (2018) 84 MVR 153; Lee v The Queen [2018] VSCA 34.