DPP v Canham [2011] VSC 296

Supreme Court of Victoria|2011-06-30|Before: KAYE J

CRIMINAL LAW - Sentence - Murder (Crimes Act 1958 s 3A) - Robbery - Use of tyre lever as weapon - Plea of guilty - Youth - Remorse - Good prospects of rehabilitation.

1 Benjamin Edward Canham, you have pleaded guilty to the statutory murder of Andrew Dowd on 9 December 2009 at Melbourne.

2 The basis upon which you were charged with that offence, and to which you have pleaded guilty, is that you unintentionally caused the death of Mr Dowd by an act of violence, namely an assault, done by you in the course, or furtherance, of an armed robbery by you of Mr Dowd.

3 At the time of his death, Mr Dowd, who was then 48 years of age, was residing at a rooming house in Queens Road, Melbourne. You had previously resided at the same premises, but you had been evicted from them on 1 September 2009. Since that date, you had frequented the rooming house from time to time.

4 During November 2009, you stayed overnight at the rooming house with an associate, Nicholas Blake. On the following morning, you formed the belief that some of your belongings had been stolen, including some money and marijuana. As a result, you searched through the rooms of the other occupants of the premises, including that of Mr Dowd. On doing so, you located some marijuana and money in Mr Dowd's room, which, you believed, he had stolen from you. I interpolate that there is no evidence that Mr Dowd had in fact stolen those items from you. Nevertheless, it was your belief that he had done so, and you formed the determination to recover what you believed was to be your property from him.

5 Subsequently, on Tuesday 8 December 2009, you again stayed overnight in Blake's room at the rooming house. On the following morning, you left the rooming house shortly after 8.00 am and walked in the direction of Queens Lane. At 8.15 am, you were observed near a car park entrance at 71 Queens Road, which is accessed by Queens Lane. You were then wearing a grey hooded top, with the hood up. In the following one and a half hours, a number of people, who were employed in the area, made observations of you loitering in the vicinity of 71 Queens Road. Your behaviour in doing so excited their suspicions of you.

6 At about 9.45 am, Mr Dowd walked from St Kilda Road along a laneway in the direction of Queens Lane. As he reached the corner of the laneway and Queens Lane, you approached him. A short verbal argument then followed, upon which you twice struck Mr Dowd to the head with a tyre lever, which you were carrying. As a result, Mr Dowd fell to the ground. You then bent over him and searched through his pockets. As you did so, two persons, who were employed in a local business, saw you. You said to them that Mr Dowd had attacked you first. You also said that Mr Dowd had stolen from you. Upon saying those words, you fled from the scene. An ambulance was called and paramedics arrived at the scene at 9.58 am. However, notwithstanding their efforts, Mr Dowd died as a result of the head injuries which you inflicted on him.

7 Having escaped from the scene, you travelled, by public transport, to Ascot Vale. Shortly after arriving, you contacted a friend, and told him that you had got into a fight, and that you hit the other person with a tyre opener. During the afternoon, you made contact with another friend, and visited his home. At that time you were observed to be quite disoriented and anxious. You then made contact with your brother, Matthew Canham. Matthew collected you in Ascot Vale. You confessed to Matthew what you had done. You told Matthew that you had lain in wait for the deceased, followed him, and hit him to the head twice. You told him that your victim was dazed after the first blow, but the second blow knocked him to the ground. Thereupon, you went through the deceased man's pockets, and took some money from him.

8 During the ensuing evening, you made similar admissions to other members of your family, and to close family friends to whom you spoke. In the course of the evening, there was contact between your parents and the Homicide Squad, and also between family friends, to whom you had spoken, and the Homicide Squad. You agreed to hand yourself in to the Homicide Squad, but only the next day. Based on their knowledge of your family background, and in the exercise of good judgment, the police agreed to that course. Accordingly, on the next day, 10 December 2009, you surrendered yourself to the Homicide Squad at 11.00 am. After your arrest, you made a no comment interview with the police, having received legal advice from a solicitor to whom you had spoken.

9 As a result of the blows, which you inflicted on Mr Dowd, he sustained a number of fractures to the skull, and associated intracranial haemorrhage. Mr Dowd also sustained other injuries to the scalp, including lacerations, abrasions and bruising. At the committal proceeding, the pathologist, Professor Cordner, expressed the view that the injuries sustained by Mr Dowd were consistent with the infliction of two blows with the metal lever to the skull of the deceased. The fractures, however, were attributable to one blow. Professor Cordner also expressed the view that the amount of force necessary to cause those fractures would have been most substantial.

10 As a result of your criminal actions, you have taken the life of another human being. It is clear from the victim impact statements, which I have read, that Mr Dowd was a much loved and valued member of his family. He was evidently a talented artist, and a man of many fine attributes. Mr Dowd was the principal victim of your cruel and vicious actions. However, it must not be forgotten that there are others, who loved him very much, and whose lives still continue to be deeply affected by the grief and trauma caused by your criminal actions. They are in every respect true victims of your crime.

11 The offence, to which you have pleaded guilty, namely murder, is the most serious offence known to our criminal justice system. The maximum sentence prescribed by law is life imprisonment. By accepting your plea of guilty to statutory murder, as distinct from common law murder, the prosecution has expressly accepted that, at the time at which you struck the fatal blow to Mr Dowd, you did not intend to kill him, or to cause him really serious injury, and you have pleaded guilty on that basis. Accordingly, and notwithstanding the evidence of Professor Cordner as to the nature of the fatal injury inflicted on Mr Dowd, and the degree of force required to produce that injury, I am obliged, in sentencing you, to act on the basis of the concession made by the Crown.

12 I also accept the submission, made on your behalf by Mr Dann that, as you lay in wait for Mr Dowd, you did not there and then intend to inflict violence on him. Rather, your intention was to rob him, by recovering from him what you believed to be the property which he had taken from you. Nevertheless, it is clear that, very shortly after you met up with Mr Dowd, you proceeded to attack him with the tyre lever, which you had taken to the scene for that purpose. There is no suggestion at all in the material, which I have read, that Mr Dowd gave you any reason to consider that he was a physical threat to you. Rather, having planned to rob Mr Dowd, you launched your violent attack upon him almost immediately after you caught up with him, and had a short verbal argument with him.

13 In the course of sentencing submissions, there was some discussion by counsel as to how I should view the gravity of your offending in this case. In particular, Mr Dann made submissions that your offending in this case should be regarded, for the purposes of sentencing, as substantially less serious than if you had been convicted for the intentional murder of your victim.

14 As I already stated, you are to be sentenced on the basis that you did not intend to kill, or cause really serious injury to, Mr Dowd. Rather, you are to be sentenced on the basis that you unintentionally caused his death through an act of violence done by you in the course or furtherance of a crime, namely armed robbery, the necessary elements of which included violence. It is clear from the materials that you had formed the intention to commit that armed robbery on Mr Dowd some days before the offence. For that purpose, you equipped yourself with an iron bar, and lay in wait for him for more than one and a half hours. Although I am not satisfied that, in planning the offence, your intention was to inflict the kind of blow, which caused the death of Mr Dowd, nevertheless it is clear, beyond doubt, that you must have contemplated resorting to violence, if you met with the slightest resistance. As a result, you struck the fatal blows, which caused the death of Mr Dowd, very shortly after encountering him, and almost immediately after you had a verbal altercation with him. Furthermore, the blow, which caused the death of Mr Dowd, was struck with considerable force. All of those matters are relevant to determining the seriousness of your offending. In particular, I do not accept that this case is an instance of statutory murder which, broadly speaking, could be categorised as being substantially less serious than intentional murder.

15 In pleading guilty, you have also, through your counsel, admitted previous convictions, in Victoria and New South Wales, arising out of four separate court appearances. Most of your previous convictions concern crimes of dishonesty, motor traffic offences, and criminal damage, and they have only limited relevance to the sentence which I must impose. In May 2007, you were granted probation, without conviction, for a number of offences, one of which consisted of recklessly causing injury. I accept, from the description of the offence given to me by your counsel, and from the sentence imposed by the court, that the circumstances of that offence were not particularly serious.

16 Notwithstanding the seriousness of your offending in the present case, there are a number of mitigating factors, which I take into account in your favour.

17 First and foremost is your plea of guilty. That plea is an important mitigating circumstance in this case. It has utilitarian value, in sparing the resources of the prosecution and the State. In addition, by your plea of guilty, you have obviated the need for a number of witnesses to come to court to give evidence. Most importantly, as a result of your plea of guilty, you have spared Mr Dowd's family from the trauma and anguish of a trial involving the tragic events in which their brother died.

18 You pleaded guilty in this Court on 4 May last. However, it is significant that, from a very early stage after you committed the crime, you consistently admitted that it was you whose actions had caused the death of Mr Dowd. After making that admission to family and friends on 10 December, you have never resiled from taking responsibility for the actions, which caused the death of Mr Dowd. In October last year, before the commencement of the committal proceeding, you made an offer, through your counsel, to plead guilty to manslaughter. At the committal proceeding, and subsequently, the only matter, which you have put in issue, is the nature of your intention, when you struck the fatal blow which caused the death of Mr Dowd. Ultimately, when the prosecution agreed to substitute a charge of statutory murder, for the original charge of common law murder, you readily agreed to plead guilty to it.

19 The plea of guilty by you is also of value, because it involves the public acknowledgement by you of your criminal wrongdoing. The question of remorse is always difficult to assess, particularly in the case of a young offender such as yourself. On the evening of 10 December, you made statements to members of your family, which, taken at face value, would indicate a lack of remorse, and indeed a degree of callousness on your behalf. However, I accept that, in making those comments, you were acting out of false bravado. In any event, I am satisfied that, in more recent times, you have developed genuine feelings of remorse for, and insight into, the magnitude of your wrongdoing. Your father, who was an impressive witness, told me that, in a recent conversation with you, you had genuinely expressed to him your contrition for what you had done. You have written a letter of apology to Mr Dowd's family, which I have read. In addition, you have expressed remorse to Dr Danny Sullivan, a consultant psychiatrist, who examined you on 5 June last. Your remorse is an important factor in determining the prospects for your rehabilitation, and in determining the sentence, which is necessary to deter you from committing further such violent offences in the future.

20 I turn to factors which are personal to yourself. You were born in the Ukraine on 26 May 1989, and accordingly are now 22 years of age. At the time of the offence, you were 20 years of age. Shortly after your birth, your mother abandoned you, and you spent the first three and a half years of your life in an orphanage. Your adoptive parents, who were then Christian missionaries in Europe, adopted your brother, Matthew, and yourself, in 1992. During the next three to four years, your family and you lived in Estonia, where you commenced your education. You then returned with your adoptive family to Australia in December 1996.

21 You commenced your primary education at Findon Primary School in Year 3. However, during your school years, you were a difficult student, and there were a number of issues which arose relating to your behaviour at school. Notwithstanding the efforts of your parents, you did not fit in well at school. You changed schools on a number of occasions, and you undertook some of your education at home. Ultimately, you were able to complete Year 10.

22 In your early teens, you commenced using alcohol and cannabis. You formed friendships with other young people, who were involved in the abuse of drugs. You rebelled against your parents, and against the standards which they expected of you. Ultimately, you left home at the age of 16 and commenced living with friends. During that time, you changed your place of residence frequently, residing at the homes of friends, on the streets, and in a number of refuges. At the same time, you remained in contact with your parents and your brother, who continued to be supportive of you.

23 In the following years, you gained a number of periods of employment, mainly in motor vehicle repairs, and as a labourer. Each of your stints of employment was relatively short term, although I note, from the history of your employment outlined to me by Mr Dann, that you do seem to have the ability to obtain gainful employment for yourself. Your last employment was as a labourer in Thomastown between March and September 2009.

24 In the meantime, your use of illegal drugs and substances increased. In addition to using cannabis, you also used amphetamines and methamphetamines. You also occasionally used cocaine, LSD and magic mushrooms. Dr Sullivan expressed the view that you have a clear diagnosis of poly-substance abuse or dependency, involving alcohol, cannabis, stimulants and likely intermittent past abuse of hallucinogens and volatile solvents.

25 Because of your behavioural difficulties, your parents had you assessed by a child psychiatrist when you were 11 years of age. The psychiatrist considered that you showed indications of attention deficit disorder, and prescribed medication for that condition. However, because of the side effects of that medication, you ceased to use it after a short time. You have not suffered from any other psychological or psychiatric condition or disorder. Dr Sullivan expressed the view that you do not have any cognitive impairment or personality disorder, and that there is no indication of any mental disorder of any relevance in your case.

26 Your background, and your difficulties, are relevant in relation to the question of your rehabilitation. You have been in custody since 10 December 2009. Your father told me that, during the early period of your incarceration, you did not fare particularly well, because of your difficulty in conforming with prison discipline. That type of behaviour by you is consistent with the same behavioural difficulties which you displayed during your school years. However, in recent times, your father has noted that your behaviour and outlook have changed quite remarkably. In particular, you have undertaken a number of courses while in prison, and certificates in relation to those courses were tendered on your plea. You have enrolled at Queensland University to complete your secondary education, and you then intend to undertake a tertiary qualification. Your father told me that you are showing a more mature interest in current affairs. All those matters give some reason for optimism in respect of your future rehabilitation.

27 In addition, I note that, of the 14 random drug tests which you have undergone during your term of imprisonment, 13 have been negative. You have also enlisted for participation in an alcohol and other drug program run by United Care Moreland Hall at Port Philip Prison. It is of the utmost importance that your drug and alcohol problem be addressed, so that you are able to be successfully rehabilitated in the community at the completion of your prison sentence.

28 I have also received and read three character references, each of which attest to positive aspects of your personality. Those close to you consider you to be an honest and caring person. Your father considers that you have a good intellect. You are very fortunate to have the support of your family, and of some loyal and caring close family friends, all of whom visit you regularly in prison. All of those matters add to the confidence, which can be legitimately held in relation to your prospects of rehabilitation.

29 Thus, there are a number of mitigating factors which are relevant to the determination of your sentence. As I have already stated, your plea of guilty, your early admissions as to your wrongdoing, and your cooperation with the police, are matters which stand to your credit. You have only one minor previous conviction for a crime involving violence. I consider that you have good prospects for rehabilitation, provided that you sustain, and remain committed to, the path of reform on which you have recently embarked.

30 Most importantly, you were young at the time of the offence, and you are now only 22 years of age. The law recognises that the youth of an offender is an important circumstance, mitigating the severity of the sentence which would otherwise be imposed upon you. Your youth, and your comparative immaturity, reduce, to some extent, the gravity of your wrongdoing. The law also recognises that, where an offender is as young as yourself, it is in the community's best interests that the sentence, which is to be imposed upon you, be tempered, in order to enhance the prospects for your successful rehabilitation into society. On the other hand, the Court of Appeal has, on a number of occasions, stated that where a young offender is to be sentenced for such a serious offence, the weight to be accorded to the offender's youth and rehabilitation is correspondingly reduced. In the case of an offence as serious as murder, your youth cannot be permitted to override, or unduly diminish, the importance of other legitimate sentencing considerations.

31 In particular, it is important that the sentence, which is to be imposed upon you, be such as to adequately express the condemnation by this Court, and the community, of your wrongdoing, and to uphold the sanctity of human life, which is the most precious value in our society. It is also important that the sentence, which is to be imposed upon you, be of sufficient severity to serve as a lesson to others, and to send a message to the community that persons, who contemplate indulging in the type of criminal conduct, for which you have pleaded guilty, should expect to be deprived of their liberty within society for a substantial period of time. It is also important that the sentence be sufficiently stern in order to ensure that you, personally, are deterred from any further such wrongdoing. On the other hand, I do consider that, in light of your youth and your prospects for rehabilitation, it is appropriate to fix a minimum non-parole period, which is somewhat shorter than it might otherwise have been.

32 Taking those matters into account, and bearing in mind each of the mitigating circumstances to which I have referred, I sentence you as follows. I sentence you to 14 years' imprisonment. I fix a minimum non-parole period of 9 years. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 568 days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.

33 As I have already stated, I have taken into account, in your favour, the fact that you have pleaded guilty. Section 6AAA of the Sentencing Act requires me to state the sentence, and the non-parole period, which I would have imposed but for your plea of guilty. That exercise is somewhat difficult, because of the inter-relationship of your plea with other mitigating factors. In particular, I have taken into account that your plea of guilty was made as part of your continued acknowledgement of your responsibility for the death of Mr Dowd, and as part of your ongoing cooperation with the authorities. I have also considered that, to some degree, your plea is accompanied by remorse, and that it is relevant to the issue of your rehabilitation. In those circumstances, it is somewhat artificial to postulate the sentence, which I would have imposed on you, if all the circumstances of the case were the same, except that you pleaded not guilty. Nevertheless, and with that qualification, for the purposes of s 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of 16 years' imprisonment, together with a minimum non-parole period of 11 years.

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