DPP v Bryan [2013] VSC 512

2 By s 5 of the Crimes Act 1958 (Vic), the maximum penalty for the crime of manslaughter is imprisonment for 20 years.

3 You have pleaded guilty and did so at an early stage.

4 You were born on 8 May 1980 and are aged 33 years. You were aged 31 years at the time of the offending, as was the deceased. So it is, tragically, that you were both young men named David.

5 The deceased was the youngest child and only son of Polina and Gregory Tserniak. He is survived by his mother and sister, Svetlana Perepletchikov. His father died about 12 years ago. He came from a close and loving family within the Russian Jewish community. He was not a homeless person and, despite certain personal difficulties, was in regular contact with his family.

6 The difficulties, which are sad to relate, were that the deceased was living an itinerant life. He was a regular heroin user and funded his drug habit through window-washing cars at major intersections in the Richmond area. On 27 January 2012, he vacated the hostel at which he had been staying as he was in arrears with rent. He left carrying a black suitcase on wheels and two shopping bags containing his clothing and personal property. Later the same day, police received a call from management at the Melbourne Central Shopping complex where he had been acting erratically. When they attended at 3.43 pm, the deceased told them that he had consumed prescription medication.

7 At 4.32 pm, the deceased was conveyed to the Melbourne East Police Station where he became drowsy and an ambulance was called. He was later taken to the Alfred Hospital. At 10.15 pm, he was deemed fit for discharge. He remained in the public waiting room with his suitcase, bags and medication while unsuccessful attempts were made by nursing staff to contact his family. When he attempted to re-enter the trauma centre area, staff called police as they were concerned about his behaviour.

8 On 28 January 2012 at 12.56 am, police again attended the Alfred Hospital and spoke to the deceased. Although he had committed no offence, the police were concerned about his behaviour. They offered to drive him to an address away from the hospital.

9 The deceased asked the police to take him and his luggage to the Salvation Army Crisis Accommodation Centre at 29 Grey Street, St Kilda. They arrived there at 1.57 am. They made enquiries at the centre but were unable to secure any accommodation for him. He asked the police to leave him at the centre to make his own arrangements. At 2.18 am they left him with his bags outside the centre. He was not armed with any weapons and appeared to be in a fit state to look after himself.

10 The deceased spoke with staff at the Crisis Centre a number of times but was unable to obtain accommodation. He then walked around Grey Street and Fitzroy Street, eventually abandoning his suitcase at the tram stop near 91 Fitzroy Street. He was last sighted on CCTV footage at 3.28 am in the vicinity of the Crisis Centre by which time he appeared to be affected by either drugs or alcohol. His remaining property was found in the front garden of that centre.

11 At this time, you were living at 9/17 Burnett Street, St Kilda. You were a regular drug user of heroin and methyl amphetamine (ice).

12 In the November 2011, police executed a search warrant at your unit at 9/17 Burnett Street in relation to your flat mate, damaging the front door whilst forcing entry. As a result of the damage, you were not able to lock the front door.

13 In January, a friend attended your unit several times to repair the front door but never completed the work. According to that friend, you became increasingly paranoid about not being able to lock your front door or shut it properly and frequently had knives in the lounge room for protection.

14 In the early hours of Saturday 28 January, you were in St Kilda. Your various movements were captured on CCTV cameras in Grey and Fitzroy Streets.

15 At 2.52 am, you used a payphone at 51 Grey Street to contact a friend. You asked that friend to come to St Kilda and to also call a mutual female friend as you needed to get your key from her because you were locked outside your apartment with no credit on your mobile phone. You then continued to walk around St Kilda, using your mobile phone.

16 At 2.58 am, a man with no involvement in the offence attended the National Australia Bank ATM at 77 Fitzroy Street. Whilst using the ATM, he was approached by you.

17 You commented on the man's shoes and struck up a conversation, introducing yourself as Dave and telling him that you were aged 30 years. You and he then walked west along Fitzroy Street. You told him you were a chef by trade and that you had rooms for rent in Grey Street.

18 The man remained in your company until 3.40 am. During this time the two of you were captured on CCTV footage from businesses in the area in each other's company walking up and down Fitzroy Street.

19 The man described you as being high on drugs and twitchy. You stated that you could not work as a chef anymore because of your hand. You showed him your right hand which had a lump and scab on the knuckle. You said you punched someone too hard and that is how the lump was caused.

20 At one point you became agitated as you believed that you had dropped a $50 note that you thought was in your pocket. You then turned and walked back towards the Elephant and Wheelbarrow Hotel. You are seen on CCTV footage to walk ahead, interrogating passersby asking about the missing $50 note. When you reached the Elephant and Wheelbarrow Hotel, you asked security staff on the door if you could look at their camera footage to see if you had dropped the $50 note. Security refused this request. They told you that they did not have immediate access to the footage and you eventually moved on.

21 You and the man continued to walk along Fitzroy Street to St Kilda Road where you offered to sell him drugs. He initially told you that he was not interested but then asked what drugs you had. You told him you had pure crystal meth. Drugs matching this description were later found in your possession with a purity of 90%. You and the man walked into a little alcove on the side of the footpath fenced off with security gates. You then sold him some crystal meth in a small coin bag. He handed you a $50 note which you put in your pants pocket. During this transaction, a $50 note dropped out of your sleeve. You laughed and said 'see mate I told you this shit is the finest you will find, I'm that scattered I forgot I had money up this sleeve'.

22 You and the man walked towards a convenience store. At this time, he asked you if you would like a soft drink as he was going to purchase one for himself. You asked for a can of Sunkist.

23 The man purchased a 1.25 litre bottle of Solo and a 600 ml bottle of Sunkist soft drink. He left the shop and handed the Sunkist to you. You stood outside talking for a short time before walking back towards Grey Street.

24 You and the man walked into Grey Street where you encountered a group of males, one of whom was carrying a car window wiper. You commented 'nice window wiper mate, it's not raining though'. The man holding the window wiper then turned around and said 'come here I'll wipe your face with it mate'. You replied 'come here and say that again you cunt, I'll stab you, I've got a knife on me let's go' and the group of males continued to walk away from you. You then said to the man you were with: 'see mate you've got to be like that to survive on the streets around here'.

25 At 3.40 am, the man left you on the corner of Jackson and Grey Street talking to another unknown male and returned home. This location is within 10 metres of the Crisis Centre at 29 Grey Street, where the deceased left the shopping bags and which were later found in the front garden. He was last seen alive in this area.

26 The prosecution case is that you and the deceased met in the vicinity of the Crisis Centre shortly after this time and struck up a conversation before walking together to the flats at 40 Barkly Street which is about a five to six minute walk away. It is not known why you and he ended up at those flats.

27 At approximately 3.55 am, witnesses heard two men talking near the stairwell of the flats. Descriptions of the two men are consistent with you and the deceased.

28 A witness observed the men to be quite close to each other and looking directly at each other. Both men were talking in a slurred manner although one of them was talking the most. It appeared to be a serious conversation as neither party was smiling. You were using your hands whilst talking to the deceased, gesturing as if you were rebuking him for something and emphasising this with your hands. You were heard to say something that was a bit more aggressive or offensive and then there was a loud thump from the bottom of the steps which sounded like someone's head being struck against the wall. A few seconds later there were further thumps as if someone was being thrown against the retaining wall. There were four thumps in total but no accompanying yelling, crying or screaming was heard. Approximately 20 seconds after the last thump, a person was heard to leave the area. It is about a three minute walk from the scene of the crime to your unit.

29 Only a little later at 4.10 am, a passerby found the deceased lying on the footpath outside 40 Barkly Street, unresponsive and with stab wounds to his torso. Police and emergency services were called and attended. At 4.12 am, police attended and cordoned off the scene until a forensic team attended.

30 You had left the scene. At 4.20 am, you used the payphone at 51 Grey Street to contact the friend you had called earlier. You were in an emotional state and asked your friend to come to St Kilda, saying that you had broken your hand and wanted to be taken to hospital. Your friend said that he was busy with other friends at the time and told you to go directly to hospital.

31 Your friend did later come to St Kilda at around 6.30-7.00 am. He noticed that police had blocked off the street. He went to your unit and found you walking up and down the stairs outside. He asked you about the police but you denied any knowledge of what had occurred. He described you as stressed. You were packing and discarding personal items, including clothing, into the rubbish.

32 At that time, you had changed your clothes and were bare chested, wearing shorts, without a cap or shoes. You apologised for lying about your broken hand but said it was the only way to get your friend to come over. He only stayed at the unit for a short time. He found the experience unusual and left after half an hour. He never saw you again.

33 The block of units at 40 Barkly Street is a west facing, brick building of three storeys. It has a gravel driveway along the southern side providing access to a rear sealed car park area. The front of the building is set back a short distance from the footpath on the eastern side. Pedestrian access is via a series of five steps ascending to a concrete path which leads to two separate entrances along the northern side of the building. The block contains 12 units in total.

34 On investigating the scene, the police found a blood trail beginning at the base of the steps. There were bloodstains on the return segment of the retaining wall, both on its vertical and horizontal surfaces. Immediately in front of the first step and in close proximity to the bloodstains, police found a partly burned 'rolly' cigarette in fresh condition. This cigarette contained your single-source DNA profile. On the retaining wall approximately 1.8 metres (eight house bricks) from the entry, police found a partially consumed bottle of Sunkist which also contained your single-source DNA profile.

35 The cigarette butt was found where you were last seen talking to the deceased on the steps prior to the attack. The cigarette butt was also found in close proximity to the commencement of the blood trail that started on the steps. The trail continued in a westerly direction onto the nearby footpath where the further bloodstains were located on the footpath adjacent to the steps. The blood trail ran towards the south and continued along the footpath, ending near the deceased at the gravel driveway. He was found lying on the footpath near the southern end of the retaining wall and was covered in blood.

36 The clothing worn by you at the time has not been located. However, you were seen wearing the cap and photographed in similar track suit pants prior to 28 January 2012.

37 On 28 January 2012 at 4.00 pm, a Senior Forensic Pathologist, Dr Matthew Lynch, conducted a post mortem examination of the body of the deceased. Dr Lynch found 12 incised sharp object wounds involving the scalp, nose, left chest, right and left shoulders, left armpit, left upper arm, right loin, left lower back and right thigh. The stab wound to the left chest penetrated the deceased's left lung and the stab wound to the right thigh damaged the right femoral vein. Dr Lynch found that the cause of death was the stab injuries to the chest and right thigh.

38 On 7 February 2012, you were evicted from your unit at 9/17 Burnett Street for unpaid rent. Police were called and found that you had changed your appearance by affixing a temporary tattoo on your right cheek. You still displayed the pre-existing injury to your hand You then lived itinerantly with friends and associates in the Boronia area. On 18 February 2012, you moved the rest of your possessions out of the unit and lodged them in self-storage.

39 On 1 March 2012, police arrested you in Boronia. You had changed your appearance two days prior by bleaching your hair to blond. You had been staying on a friend's couch.

40 You were conveyed to the Homicide Squad for formal interview. A Forensic Medical Officer, Sanjeeva Senaratna, assessed you prior to interview and deemed you fit for interview. The doctor examined your injured right hand and obtained a mouth buccal swab which was used later for DNA comparison purposes.

41 You were then interviewed in relation to the death of the deceased. You said that, at the time, you were not working and were using drugs and walking around the St Kilda area meeting new people all hours of the day and night. However, you did not have a specific recollection of your movements during the early hours of 28 January 2012.

42 During the interview, the police showed you a number of still photographs taken from CCTV footage depicting the man you met and another male in Fitzroy and Grey Streets. The police wanted to know if the other man was you. On some occasions when you were shown photographs, you told the police that you did not think the male was you. On other occasions, you told the police that it was not you. On one occasion, you told the police '100% it's not me'. You told the police you had similar clothes to the clothes which the male was wearing but you were very particular about your clothes and were sure you did not own the clothing that the male was wearing.

43 The police also told you that the man whom you met that morning had told them about meeting a man called Dave, who was aged 30 years, was a chef by occupation and had a disjointed knuckle on his hand. The male also gave him a telephone number that you admitted was the mobile telephone number you were using at the time. But you told the police that you could not be the male because you had never owned the clothes that he was wearing. You told the police that you may have bumped into the man that morning but you could not remember walking around St Kilda with him or a male buying you a bottle of soft drink.

44 You were also shown photographs of the deceased taken from CCTV footage on the same morning. You told the police that you may have bumped into him that morning but had no recollection of doing so. You said that you did not know him and had never been involved in any sort of drug transaction with him. You said that you had never been in Barkly Street as you had no need to go there and you denied any involvement in his death.

45 In the way that I have described, you were initially uncooperative when interviewed by the police. That changed over time. Well before the trial was due to be held in this court, you entered a plea of guilty to the charge of manslaughter for which you are here under sentence. It is accepted by the prosecution that you did so at an early stage. You have apologised for being initially uncooperative and have now accepted full responsibility for killing the deceased. Your plea of guilty saves the community and his family the expense and trauma of a contested trial, on which it was otherwise your unqualified right to insist. The value of your plea goes well beyond the utilitarian. As your counsel submitted, on the evidence available a conviction was not inevitable. In my view, on that evidence, you may well have been acquitted. Therefore your plea is strong evidence of remorse and supports a favourable view of your prospects of rehabilitation. This is consistent with the words which you chose to use when giving your plea of guilty to the charge of manslaughter: 'Your honour with great sorrow to a family who's lost their son, ... regret, the hurt and pain that's caused all the parties including our community and disgust on my behalf, I plead guilty'.

46 You have a number of relatively minor criminal convictions, all apparently drug-related. More significantly, you were convicted of a serious crime on one occasion. On 26 November 2002, you were convicted of causing grievous bodily harm and sentenced in the Brisbane District Court to imprisonment for four years, to be suspended for a period of five years after having served 12 months. That sentence was increased in the Queensland Court of Appeal on 5 February 2003 to imprisonment for six years. In the District Court you were also convicted of common assault and sentenced to imprisonment for one month, concurrent. That sentence was not disturbed by the Court of Appeal.

47 In relation to that offence, the circumstances of the offending were that, in the Brisbane CBD, you stabbed a passerby with whom you provoked a fight. It was described by the Court of Appeal as a 'vicious attack with a weapon upon a stranger. It was gratuitous street violence'.[1] I note that, on the plea material available, the Court of Appeal did not think it could give you significant credit for remorse.[2] There is different material available in this case and I can give you significant credit for remorse. You were aged only 22 years at the time of committing the offence. You have said that this sentence hurt you very hard and I understand why you make that remark.

48 The mother of the deceased, Polina Tserniak, wrote a very moving victim impact statement which was read to the court. She explained how deeply felt was the deceased's loss to the family, especially because, being Jewish, there are regular celebrations and important ceremonies during the cycle of yearly life which bring the family intimately together. The deceased's absence from these events is acutely painful. Ms Tserniak has lost her only son and, with him, the opportunity of relationships with grandchildren and the continuation of the family name. Her health and wellbeing has suffered grievously as a result of his death, with consequential effects for her professional and primary breadwinning responsibilities. The court process has been an agonising ordeal.

49 Somehow, through all of this, Ms Tserniak has found the strength to speak words of great dignity and wisdom to you, the court and the community. I refer in particular to the following parts of her victim impact statement, which I set out in full for the public record:

My dear son, together with my hope, was taken from me unexpectedly, and my only hope now is that the accused will use his sentence wisely. I truly hope that David Bryan will be able to reflect on his wrongdoings, and come to realisation that his life needs to change and he needs to learn how to integrate into our society as a normal law-abiding citizen. Not only he caused a great deal of grief to my family, his own family has surely suffered more than enough sorrow in the past - I really feel for David Bryan's mother. David Bryan has to really think about his rehabilitation so that he can bring his own family some happiness and goodness after years of disappointment and distress. Furthermore, David Bryan needs to understand that the only way to escape from this vicious cycle, once he is out of the correctional institution, is to live his life with authenticity and integrity not only for himself but also for his namesake, my son ... This is going to be his forgiveness.

Finally, I would like to use this opportunity to express my despair at how dysfunctional our crime prevention and correction system is. I believe that this tragedy could have been avoided if we had properly elaborated and enforced policies in Australia for identifying and treating children that exhibit signs of aggression in their childhood and early manhood. Australia is a great country, and as a society we should really do everything possible to avoid such tragedies in the future.

To conclude, I have been sentenced to a life of unbearable grief and excruciating pain as no parent should ever have to survive their children.

I strongly commend Ms Tserniak and endorse the remarks which she has made, especially the emphasis which she placed on the need for you to learn to live a life of authenticity and integrity. I also make clear that you must be justly punished under the applicable sentencing principles for the crime which you have committed as to which her remarks form only part of the relevant considerations.

50 The deceased's sister Svetlana read her victim impact statement in court, no doubt in memory of her love for her brother and his love for her. The unfathomable depth of her grief was very evident from the contents of the statement and the great effort which she had to make in reading it. David was Svetlana's little brother and she has no memory of life without him. He had a beautiful soul. He loved his family and was loved by them. He was Svetlana's brother and friend and the protector of the family. After their father's death, he was always there for her, for his mother and for his grandmother Rosa. Seeing the deceased's body at the coroner's office was the most disturbing and traumatic experience of her life. Like her mother, Svetlana spoke of the lost opportunity of having nephews and nieces and the unbearable feeling at family gatherings that someone was missing, that there was an empty chair.

51 The name David comes from the Hebrew root for 'beloved'. It can be seen from the statements of his mother and sister that he was indeed beloved.

52 The court has been greatly assisted by reports submitted on your behalf at the plea hearing. The reports were prepared by Dr Andrew Carroll, a consultant forensic psychiatrist, and Ms Carla Lechner, a clinical and forensic psychologist.

53 Dr Carroll described your social and personal history. You grew up in Queensland and come from a family of highly successful professionals. You are the eldest of three children, having a younger brother and sister. Your parents' marriage broke down when you were aged 19 years. You admitted to misbehaving at home and at school from your early teenage years due to substance abuse, especially alcohol and cannabis. From your late teenage years you have been using heroin. Later in your life you began using ice. Prior to killing the deceased, you had a number of unsuccessful attempts at rehabilitation. Dr Carroll set out other details of your background and circumstances, which I have considered.

54 In relation to your medical condition, Dr Carroll said that you were not suffering from a mental illness but were addicted to drugs. You did not need psychiatric treatment but did need intensive drug rehabilitation.

55 Dr Carroll also set out your account of the circumstances of the offending. In 2011, your relationship with your girlfriend, with whom you had been living, broke down. You separated and, after a number of moves, ended up living in St Kilda. Your lifestyle was chaotic and involved heavy use of ice and some use of heroin. You were concerned for your own security because of the broken front door at the apartment. You were on the streets on the night concerned, as described in the prosecution opening. You recalled being involved in a confrontation with some people and experiencing emotions of great fear and confusion. You did not recall stabbing the deceased or the circumstances in which that happened.

56 Dr Carroll said that it was most unlikely that you would have engaged in such serious violent behaviour outside the context of heavy substance abuse and the chaotic and marginalised existence which was running in parallel. You were unlikely to reoffend if you stopped abusing substances. You are remorseful, but tend to overestimate your abilities and capacity. Dr Carroll was impressed, as I have been, with the rehabilitative progress you have been making in prison. He said you displayed genuine remorse and real insight, which I also accept.

57 Ms Lechner also described your personal history, family circumstances and long history of drug and alcohol abuse. She said that you freely acknowledged your role in the killing of the deceased, of which you recalled very little. You were very sorry for what you had done, for him, for his family and for the community. Ms Lechner diagnosed you as having a poly-substance use disorder, which was a life long condition for which you needed ongoing rehabilitation. The condition was quite possibly genetic. She found you to be emotionally immature, not having learned vital skills such as conflict resolution, social communication and learning to deal with uncomfortable emotions.

58 It is notable that the prison authorities have written a reference about your positive role in prison. Chris Frei, speaking for the clinical services team of the Port Phillip Prison, has explained that you are performing important duties in the prison under the Peer Supporter Program. A peer supporter is a trusted position involving the ongoing pastoral support of existing inmates and the induction of new inmates. To gain entry to and remain part of the program, you have demonstrated and must continue to demonstrate a range of skills, including a sound work ethic, good communication skills with both staff and inmates and remain incident and drug free. Ms Frei reports that, as part of the program, you are making a valuable contribution to your fellow inmates.

59 Officers of the prison have also informed the court that, whilst in prison, you have undertaken a substance abuse program and a relapse prevention program. You are on the waiting list for the intensive substance abuse program. After the pronouncement of this sentence, you will be assessed for suitability for entry to the program.

60 Family and character references were submitted to the court on your behalf at the plea hearing and I have taken these into account.

61 In sentencing you for this crime, the court must express on behalf of the community its denunciation of the killing of an innocent human being. David Tserniak has lost his precious life at your hands, with dreadful consequences for his family. A mother has lost her son against the order of nature. An elder sister has likewise lost her younger brother. The character of the offending was that you stabbed to death a man by an unlawful and dangerous act, although it was spontaneous and unpremeditated. The fact that you used a knife which you were carrying and inflicted multiple wounds upon him constitute circumstances of aggravation. Your actions and those aggravating circumstances call for a significant and immediate term of imprisonment.

62 When assessing the degree of your moral responsibility for this crime, I take into account your past conviction for a serious crime of violence in Queensland. You cannot call youth and inexperience in aid as part of the explanation for the crime which you committed against the deceased. While your drug addiction and chaotic lifestyle provide some explanation by way of context for your commission of the crime, these circumstances are in no way exculpatory and do not operate to reduce your moral culpability. I do take into account in your favour that you appear to have committed the crime while in a subjective state of fear.

63 Although I think there is little need for you to be specifically deterred from committing similar crimes in the future, there is a need for general deterrence to be taken into account as a sentencing consideration. When imposing a sentence for serious crimes of street violence committed by individual offenders, the courts must do what they can to deter others from committing similar crimes.

64 In this regard, I must add my voice to those who have expressed serious concern about the widespread abuse of ice by young people, especially young men. The courts are appalled by the personal violence which is associated with the abuse of ice, which has reached alarming proportions. This case fits into a pattern of offending with which the courts are all too sadly familiar. Abuse of ice is closely associated with street and family violence and other pernicious antisocial consequences. It is a pressing problem for the community about which more should be done, especially at the level of prevention. I endorse the remarks of Ms Tserniak, the mother of the deceased, who has called for much greater attention to the issue by Australian governments and law enforcement authorities.

65 While the crime which you committed was a violent one and the circumstances were aggravated, I do not find you to be a danger to the community such that protection of the community becomes an important sentencing consideration. More importantly, there are very powerful mitigating factors which must be taken into account. The remorse which you have expressed is undoubtedly sincere and appropriate. Given that your conviction on the available evidence was not inevitable, your early plea of guilty must carry particular weight. Your family are standing by you very firmly and, from the medical evidence, it appears that you are sincerely committed to long-term rehabilitation. Your prison record to date has been exemplary and supports a favourable view of your prospects on release. These and other factors in mitigation combine to produce a sentence of imprisonment which, under the applicable sentencing principles, must be less than that which would otherwise be required.

66 In pronouncing this sentence, I feel bound to observe that you are at a turning point in the path of your life. Up the forward path is rehabilitation and learning to live a life of authenticity and integrity by which you might attain a true state of atonement for the crime which you have committed. Down the backward path lies retreat into the negative life which you have been living. I have no doubt that you have the potential to make a valuable contribution to society and be a positive role model for others. As a very young man in your early twenties, perhaps you did not have the level of personal maturity needed to realise that potential after being convicted and jailed for a significant period in Queensland. As a still relatively young man in your early thirties, you must put that experience behind you and make the right judgment now, with the continuing support of your family.

67 In all of the circumstances, for the crime of manslaughter committed by killing David Tserniak, you will be sentenced to imprisonment for six years. You will be required to serve a sentence of three and a half years before being eligible for parole. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I state that, but for your plea of guilty (when considered in the light of the other mitigating circumstances) I would have imposed a sentence of imprisonment of nine years with a non-parole period of six years. I declare that the number of days already served under this sentence is 574 days (not including today).

[1] R v Bryan; ex parte A-G (Qld) [2003] QCA 18 (5 February 2003) [29] (Williams JA, de Jersey CJ and Cullinane JA agreeing).