DPP v Carleton [2014] VSC 19

3 Early in the evening, Radford went to his bedroom to sleep. Subsequently, at about 1.00 am on Sunday 14 April, a fight erupted between yourself and Harrap, in the course of which you inflicted the blows which caused Harrap's death.

4 You are the only direct witness to what occurred. On your account, Brett Harrap punched you in the face after you had fallen asleep on the couch. You retaliated by having a physical altercation with him.

5 A short time later, when you were both outside the front of the unit, the fight continued. A neighbour, who heard the fight, and who contacted triple 0 to summon the police, stated that she heard one male screaming in pain and screaming for help. She also heard the sounds of something hitting the fence, and of flesh hitting flesh. I am satisfied, from the evidence of the post-mortem examination, and from the latter part of the interview which was conducted with you by the police, that in the course of the altercation, Harrap fell to the ground. You then kicked him, and stomped on him once. In your interview, you stated that you stomped on him with a fair degree of force on the chest area. The evidence of the pathologist is that a significant blunt force, of a severe nature, must have been applied to the chest of the deceased in order to have caused the injuries which he sustained.

6 Having inflicted those injuries on Harrap, you then put him to bed. You placed a blanket over him. In your interview with the police, you stated that you believed that he was then still alive. The pathologist's evidence is that, in light of the amount of internal bleeding sustained by Harrap, death would have occurred within a matter of moments after the infliction of the fatal blows to his chest area.

7 Shortly after the altercation ceased, the police arrived at Radford's premises. Radford and you went to the door. You were both observed to be extremely affected by alcohol. When the police asked what had happened, you said to them, "He came up and clocked me when I was asleep, I woke up and hit him a couple of times and we kicked him out". Both Radford and you denied that anyone had been injured. You told the police that the other person had left the premises.

8 During the afternoon of Sunday 14 April, you enlisted the assistance of an associate, Craig Thetford, to remove the body of Brett Harrap from Radford's premises. When Thetford attended in his vehicle, you placed Harrap's body in the boot of it. You then travelled with Thetford to the corner of the South Gippsland Highway and Thompsons Road, Cranbourne. You took a backpack belonging to Harrap from the vehicle, poured petrol on it, set fire to it, and placed it into a dump bin at the rear of a liquor store. You then drove along Thompsons Road to Worsley Road, Carrum Downs. There, you removed Harrap's body from the boot. You threw the body over a ditch and dragged it under a fence. You left Harrap's body beside some trees and placed branches over it in order to conceal it. You then drove home with Thetford.

9 Subsequently, Brett Harrap's ex-partner, Chloe Welling, reported Harrap as a missing person to the Dandenong Police Station. On 29 April, an examination was conducted at Radford's unit, in the course of which bloodstaining was located in the entrance hall. The police also found bloodstaining on some clothing there.

10 On Wednesday 1 May, you were arrested and questioned by the police. In the earlier parts of your interview, you stated that you had punched Brett Harrap in self-defence, after he had punched you while you were asleep on the couch. You denied inflicting any other blows on Harrap. You cooperated with the police by travelling with them to the location at which you had deposited Harrap's body.

11 A post-mortem examination was then conducted on Brett Harrap's body. It revealed that he had sustained extensive bilateral rib fractures, a contusion of the liver, and consequential internal bleeding. The pathologist concluded that the cause of death was significant blunt force trauma to the region of the chest and abdomen. He considered that a severe amount of force would have been required to cause the injuries found on the post-mortem examination.

12 On 2 May, the police re-interviewed you. You told the police that after Brett Harrap assaulted you on the couch, the two of you had a fight inside the unit. The fight ceased, and you went outside to cool down. However, Harrap followed you outside, and hit you. You then fought back. In doing so, you admitted you might have kneed him once.

13 The police then told you of the results of the post-mortem. In response you admitted that you had kicked Harrap once, and that you had stomped on him once, while he was lying on his back on the ground. You told the police that you were pumped up, and that you were angry after he punched you, while you were on the couch, and, subsequently, after you had gone outside the unit. At the conclusion of the interview, you expressed regret for what had happened.

14 The offence of manslaughter, to which you have pleaded guilty, is a most serious offence, for which the maximum sentence is 20 years' imprisonment. You have pleaded guilty on the basis that you caused the death of Brett Harrap by an unlawful and dangerous act, in that the assault, which you inflicted on Harrap, involved such a degree of force that a reasonable person, in your position, would have realised that he was exposing Brett Harrap to an appreciable risk of serious injury.

15 On the balance of probabilities, I accept your account that Brett Harrap was the initial aggressor, when he struck you while you were asleep on the couch in Mr Radford's unit. However, the degree of violence, to which you resorted in response to that assault, was entirely disproportionate. Brett Harrap was small in size. On the evidence of the neighbours, the beating which you inflicted on him outside the unit was somewhat protracted, and you continued to attack him while he was in pain and pleading for help. Your action, in stomping on him with severe force, while he was defenceless on the ground, is entirely inexcusable.

16 In his thorough and persuasive plea on your behalf, your counsel, Mr Tiwana, submitted that your offending should be characterised as falling within the lower range of manslaughter cases. I do not accept that submission. The degree and type of violence which you inflicted on Harrap, particularly while he was on the ground, are such that, in my view, your offending should be properly characterised as falling in the middle range of manslaughter cases which come before this Court. In addition, your offending was aggravated by your actions in disposing of and concealing Brett Harrap's body.

17 By your criminal actions you have taken the life of a fellow human being. At the time of his death, Brett Harrap was 30 years of age. Although at that time his life, like yours, was blighted by the excessive consumption of alcohol, nevertheless there is no reason to expect that Brett Harrap could not, otherwise, have lived a useful and fulfilling life. I have read, and re-read, the moving victim impact statement of Brett Harrap's ex-partner, Chloe Welling. In that statement, Ms Welling describes, in detail, the significant impact of Brett Harrap's death on his six year old son, Brodie. At this stage, Brodie is too young to understand the cause of the absence of his father, to whom he was deeply attached. He misses his father greatly, and often calls for him in the night. I have no doubt that when Brodie is informed of the reason for his father's absence, he will suffer considerable trauma. Thus, by your criminal actions you have not only deprived a friend of his life, but you have also caused his young son immeasurable grief and anguish.

18 On the other hand, I do accept Mr Tiwana's submission that there are important mitigating circumstances in your case. As I stated, I accept that there was a degree of provocation offered to you by Brett Harrap. In particular, I accept that your assault of Brett Harrap was not premeditated, but, rather, resulted from a spontaneous outburst of uncontrollable anger on your part. Secondly, in your interview with the police, you candidly admitted that it was you who struck the blows which caused Brett Harrap's death. In the circumstances in which you found yourself, you could have been tempted to have sought to falsely attach the blame for Harrap's death on some other person, and, in particular, Radford. The fact that, from almost the outset, you accepted responsibility for Brett Harrap's death is a circumstance in your favour.

19 Thirdly, it is to your credit that you assisted the police to locate Brett Harrap's body, so that he could be accorded the dignity of a funeral. Fourthly, your plea of guilty in this case is an important mitigating circumstance. I accept that, in the context of the circumstances of this case, it should be regarded as an early plea. The plea has had an utilitarian effect, sparing both the community and witnesses the expense and trouble of a criminal trial. In addition, I accept that your plea of guilty was accompanied by genuine remorse. In your interview, you expressed some regret as to what had happened. You have subsequently expressed your genuine remorse to the psychologist, Mr Patrick Newton, who interviewed you two weeks ago. It is apparent that your remorse is contributing to the depressive condition, from which you now suffer.

20 I turn, then, to matters which are personal to you. You are 40 years of age, having been born in March 1973. From early childhood, your life has been detrimentally affected by the adverse consequences of the excessive consumption of alcohol, both by yourself, and by those who were responsible for you during your childhood.

21 You are the fifth of six children of your family, of whom only you and your younger sister survive. Three of your older siblings died before you were born. Another was killed in an accident. Significantly, your second eldest brother, to whom you were close, was murdered in 1997.

22 Your father was an extremely heavy drinker, who was frequently absent from the family home. Your parents separated when you were nine years of age, and your father passed away three years later. Your mother remarried soon after her separation from your father, but your stepfather was also a heavy drinker. No doubt as a result of your regular exposure to alcohol, you yourself began to consume alcohol at the age of 11. Since then, your consumption of alcohol escalated significantly, so that during a large part of the last 30 years, you have spent most of your life indulging in the consumption of substantial quantities of alcohol.

23 You were raised in the Dandenong area. You undertook your primary education at Cranbourne West Primary School, and attended secondary school at Cranbourne Meadows Technical School. However, your education was limited. You struggled academically. You were a shy person, who made few friends. You were subjected to verbal and physical bullying at school. Your formal education was also affected by your abuse of liquor.

24 You left school at the conclusion of Year 8 at the age of 15 years. During the next few years, you had intermittent work as a labourer. The one redeeming feature of your early years is that you were a keen footballer, and you only ceased participating in that sport at the age of 20 years, after you suffered a head injury.

25 At the age of 21, you moved to Western Australia, to join your brother Peter. You lived with your brother off and on, and you worked in Perth at an abattoir. You married in 1995, when you were 22 years of age. That marriage survived for eight years. Ultimately, your marriage failed because of your excessive drinking. You subsequently formed a relationship with another woman for ten years. Your partner was also an alcoholic like you, but ultimately she was able to terminate her addiction to alcohol. However, you were not able to give up drinking, and as a result you separated from your partner.

26 During that time, as I stated, your brother Peter was murdered. The circumstances of his death were traumatic for you. The criminal proceedings against the man responsible for your brother's death were protracted, occasioning you further distress.

27 You remained in Perth until 2011. You then returned to Melbourne, and lived in the Dandenong area. You resided at different times in boarding houses, with friends, and on occasions with your mother. I should interpolate that you have not had any contact with your younger sister for more than 20 years, and that your mother has been the one constant feature in your life. She attended court at the hearing of your plea, and has been supportive of you while you have been in custody.

28 In Victoria, you spent much of your time drinking with fellow alcoholics, including Brett Harrap and Warwick Radford. At the time of the offence, you were living in Radford's house.

29 It is clear, from the brief outline which I have given of your personal circumstances, that your life, since the age of 11 years, has been dominated by the continued excessive consumption by you of alcohol. You have a very long list of previous convictions. However, most of those convictions involve public order offences, offences of dishonesty, and alcohol related offending. Your record does contain some four appearances for offences of assault. However, the latest conviction for such an offence was in 2005. In light of the sentences which were passed on you for those offences, it would seem that the amount of violence involved in the offences was far less substantial than the violence in which you indulged on this occasion. In this context, I note the testimonial of Pastor Don Cameron, of "Cornerstone", which conducts a drop in centre in Dandenong. You have attended that centre for some years. Mr Cameron states that he has not seen you become violent or become involved in any altercations, and that other volunteers in his organisation have made the same observation about you.

30 Since your arrest in May 2013, you have been held in custody in the Metropolitan Remand Centre. You suffered greatly from the symptoms of withdrawal from alcohol during the first few months of your incarceration. During your time in custody, you have worked in the kitchen. You have also attended a number of courses which are directed towards your rehabilitation, including the mood management program, the alcohol and other drugs adjustment program, the problem solving program, the conflict management program, and the communication skills program. It is to your credit that you have already taken steps towards your rehabilitation. I encourage you to continue working in that direction.

31 On 26 January, you were assessed by Mr Patrick Newton, a forensic and clinical psychologist. Unsurprisingly, Mr Newton has diagnosed that you suffer from a severe alcohol abuse disorder. You also suffer from reactive depression of moderate intensity, arising from your feelings of guilt for the death of your friend, as well as your grief over his loss. It appears that your feelings in that regard have been intensified by your own unresolved grief regarding the death of your brother. You have been prescribed, and are taking, anti-depressant medication.

32 Mr Newton has noted that, during your time in custody, you have had an enforced period of abstinence from the consumption of alcohol. However, no area of your life has escaped the devastating effects of your addiction to alcohol. As a result of your lifetime habit, you have been unable to develop appropriate adaptive living skills, your emotional functioning has been affected, your health has been compromised, and your capacity to solve problems has been impaired. Mr Newton recommends that while you are in custody you receive the maximum amount of support by way of appropriate programs, which are designed to address each of the deficits, to which I have just referred.

33 As I stated, I commend you for embarking on steps directed to your rehabilitation. However, as Mr Newton notes, you do not have good prospects of rehabilitation, unless you are provided with, and take advantage of, the type of programs which are recommended by Mr Newton and to which I have just referred. It is in your interest, and also in the interests of the community, that steps are taken to rehabilitate you, so that you are no longer a risk to society on your release. In this respect, it is important that if and when you are released on parole, you be provided with sufficient supervision to enable you to return to society without relapsing into your lifetime habit of excessive alcohol consumption.

34 I encourage you to use the next few years while in custody positively. You have wasted nearly all of your life. There is still sufficient time for you to overcome your addiction to alcohol, and to lead a productive and constructive life after you are ultimately released into society.

35 As I stated, you have pleaded guilty to a serious offence, which involved the use of an excessive and unacceptable degree of violence, and which resulted in the tragic death of a young man. Your offending was aggravated by your attempts to dispose of and conceal Brett Harrap's body. On the other hand, there are a number of mitigating circumstances, to which I have earlier referred.

36 It is necessary that the sentence, which I pass on you, be such as to constitute an appropriate condemnation by the court and the community of your wrongdoing, and as to uphold the sanctity of human life. It is necessary that the sentence be of sufficient duration to deter other persons, who might be minded to indulge in the same type of violence, which you inflicted on Brett Harrap. It is important that the sentence be sufficiently long to constitute a lesson to you, and to ensure that you thoroughly understand that you need to take significant steps in your life to ensure that you do not find yourself again in the same type of situation.

37 Taking those considerations into account, and balancing the serious nature of the offence against the mitigating circumstances to which I have referred, I sentence you as follows. I sentence you to 7 years and 6 months' imprisonment. I fix a minimum non-parole period of 5 years and 6 months. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 286 days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the court.

38 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. In this case, I find that that exercise is somewhat artificial, because of the necessary interrelationship of your plea with other mitigating factors, and, in particular, with your remorse, your admissions, and the steps which you are taking towards your rehabilitation. 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 9 years' imprisonment, with a minimum non-parole period of 7 years.