DPP v Clark [2023] VSC 220

3 You were friends with Mark Morrow, another resident of the Hall. You had visited Mr Morrow at the Hall on three or four previous occasions, including on the day before these events.

4 You had an arrangement with Mr Morrow, whereby your social security benefits were deposited into his bank account. Around 11:30am on the morning of 17 March 2022, you saw Mr Morrow near the Yarraville train station, and asked him for some of your money. He told you that you would have to wait for him to return. You said you would wait at his place.

5 Around 2:45pm, Mr Barnett left his room and went outside. He saw you standing around, waiting for your friend. The two of you were strangers. Mr Barnett had a habit of telling visitors to the property to leave, generally in rather abrupt terms. Another resident heard Mr Barnett yelling at you, asking what you were doing on "our property". Mr Barnett told you to "fuck off".

6 A few minutes later, Father John O'Connor, and a parishioner who was helping him on a project, came to investigate the commotion. When you approached them, they saw that you had some blood on your face, but no visible cut or abrasion. You told them you had been waiting for a friend, when one of the residents had "got in your face" and been swearing a lot. You seemed agitated and slightly incoherent, but were not aggressive towards them.

7 Father O'Connor suggested you walk away and cool off, which you did. You walked away from the property, heading towards the train station. Father O'Connor and the parishioner returned to the shed where they had been working.

8 Around 3pm, another resident saw you outside the Hall property, pacing near the bushes. You looked agitated.

9 Around 3:30pm, Father O'Connor and the parishioner heard more arguing, and went to investigate. When Father O'Connor first saw you, you were kneeling. You then stood up and started shouting at Mr Barnett, who was unconscious on the ground.

10 The parishioner called 000. You were agitated and pacing around, talking about what had happened. You said "I did not overdo it a bit, I hit him 4 fucking times, mate." You also said "I've literally offered him help. Yeah, and he attacked me bro, OK. I'm the bad guy for that, yes."

11 Police and paramedics arrived a short time later. You remained at the scene until they arrived. You told police that you had walked away after the initial confrontation, and returned later to see if your friend was back yet. When you did so, Mr Barnett "started on" you again. You said you told him he had the wrong person, but he had "got in your face", and "then he grabbed me and pushed me, alright, and that's when, big issue." You said you had protected yourself after he attacked you.

12 You continued to behave aggressively whilst speaking to police. They arrested you and took you to Footscray Police Station. You were not considered fit to be formally interviewed at the time, and no subsequent record of interview was conducted.

13 Mr Barnett was taken to hospital, where he received emergency treatment for his head injuries. Despite receiving extensive medical intervention, he died in hospital one week later.

14 Mr Barnett's cause of death was blunt force trauma to his head. The pathologist identified three injuries to his head, indicating the application of mild to moderate force on at least three occasions. There was also evidence that a clump of Mr Barnett's hair had been removed forcefully.

15 In the days after the offending, you gave accounts of what had happened to your sister and a couple of associates, in phone calls made from prison. Your accounts were generally consistent. You said that you had hit Mr Barnett four times, after he had come up and grabbed you. You said you had "gone spastic" and "punched the fuck out of him." You said that you had knocked him "clean out" on the first hit, that he was "out" before he hit the ground. You said that when he was on the ground, you hit him three more times.

16 I turn to consider the seriousness of your offending. There is no CCTV footage or eyewitness to the interactions between you and Mr Barnett. However, it is clear that there were two separate confrontations between the two of you.

17 Mr Barnett was known around the Hall to be confrontational, particularly with visitors. I accept that he started both of the confrontations by telling you, rudely and forcefully, that you were not allowed to be there - even though he had no right to decide who was or was not allowed on the property. However there is no evidence that he had ever been violent. You completely overreacted to his behaviour.

18 The forensic evidence suggests that Mr Barnett was bleeding at several locations, including near the gate and on a porch, as well as on the path where he was lying unconscious when Father O'Connor and the parishioner found you standing over him, yelling. But it is not clear when, or in what circumstances, the blood was deposited in each of the locations.

19 The first confrontation took place around 2:50pm. You have not given an account of hitting Mr Barnett at this time. However, it seems likely that some of the blood on the ground, and the blood seen on your face, may have come from Mr Barnett at that time.

20 What is clear is that, after initially leaving the property, you returned to wait for your friend. You did not come back looking for a fight. Mr Barnett confronted you a second time around 3:30pm. On this occasion, you punched him three or four times. On your own admission, at least some of the punches were thrown when Mr Barnett was unconscious on the ground, totally unable to defend himself. You also pulled his hair forcefully at some stage.

21 There was an age disparity between the two of you. You were 27 and Mr Barnett was 64 years old. Mr Barnett suffered from osteoarthritis, and had experienced a stroke sometime in the past. However, he was also an active gardener. I accept that Mr Barnett may have had some mobility issues as a result of his health problems, but the evidence is not sufficient to establish that you must have been aware that he had any particular vulnerability beyond his apparent age.

22 You did not attempt to flee the scene, and made admissions to police when they arrived. However, you were not immediately remorseful at the scene, or in your calls from prison - indeed, the tone of your calls suggests a degree of bragging about what you had done. That said, when you were speaking to police and on the phone, you were not aware of the seriousness of Mr Barnett's injuries. I accept that you began to demonstrate some remorse after you learned of his death.

23 It is an aggravating feature of this offending that you were on a community correction order when you punched Mr Barnett.

24 Before considering your personal circumstances, I want to say something about the effect your actions have had on others.

25 Victim impact statements were provided by two of Mr Barnett's siblings and his aunt. Even though Mr Barnett had been estranged from most of his family members for many years, they have suffered in various ways from his death, and the circumstances in which he died. His brother was pleased to discover that Mr Barnett had kept some treasured items from his childhood, that he had inherited a family passion for horse racing, and that he had shared his artistic and gardening skills freely with his friends and neighbours. They are sad that they did not get to say goodbye, or to reconcile or spend more time with him, before he died. Their loss has been compounded by the fact that he was one of four immediate family members who died in as many years.

27 You were born in November 1990. After your parents separated, when you were about six months old, you lived mostly with your father. He was violent and abusive towards you, and abused alcohol and illegal drugs on a daily basis. As a child, you saw little of your mother, who had custody of your sisters.

28 During your childhood, you were apparently diagnosed with ADHD and autism spectrum disorder. You were always getting into fights, at home and at school. Your involvement with child protection authorities began in your early teens. You were placed in residential care, where you were the victim of sexual assaults and violence from older males. You were moved around between many different residential units, and had no housing or educational stability.

29 You left school after completing year 10. Since then, you have had sporadic jobs in manual labouring positions, in various industries.

30 Since leaving residential care, you have spent large periods of time homeless, or living in squats. Whilst living on the streets, you have been the frequent victim of violence, for which you have received hospitalisation or other medical treatment. At the time of the offending, you were living in public housing.

31 You started abusing alcohol and drugs as an adolescent, and have tried many different drugs over the years. At the time of the offending, you were a daily heroin user. However, there is no evidence that you were substance-affected at the time of these events.

32 You are currently single, and have few friends. However, your mother and four sisters all wrote letters of support. They perceive your substance abuse to be your way of self-medicating, to deal with your childhood violence and trauma. They believe that you have the potential to turn your life around, if you are able to address your mental health and substance abuse problems.

33 You have been diagnosed with a personality disorder with avoidant traits, PTSD, generalised anxiety disorder, and substance use disorder. You have an avoidant pattern of social interactions, with features of social inhibition, feelings of inadequacy, and hypersensitivity to negative evaluation. Your PTSD has developed as a result of your traumatic life experiences, and causes you to be intensely fearful in stressful situations, leading to panic and irrational behaviour to protect yourself.

34 Ms Gina Cidoni, the psychologist who assessed you for the purposes of sentencing, believes that your combination of symptoms is likely to have contributed to this offence through hypervigilance, intense fear and panic in stressful situations, exacerbated by your poor coping strategies and lack of internal resources.

35 The prosecution accepts that both your troubled childhood, and your mental health problems, have the effect of moderating your moral culpability to some degree. However, your inability to control your violent response to confrontation may decrease moral culpability, but increase the importance of protecting the community.

36 Ms Cidoni acknowledges that your risk for violent recidivism is currently high. However, she believes that risk can be lowered through appropriate treatment and interventions in custody and on parole.

37 I also accept that the need for general and specific deterrence is moderated to some extent by these same considerations.

38 Ms Cidoni also believes that your mental health problems would make it challenging for you to handle the stress of imprisonment. Your personality disorder causes you trouble communicating and regulating your emotions, and may result in conflict or social isolation. Stress could trigger or worsen symptoms like agitation and low self-worth. There is no evidence of any particular problems of this nature having arisen during the year in which you have been in custody, but I accept that there is some risk of this sort.

39 In your teenage years, you appeared before the Children's Court a few times, in relation to relatively minor matters. In March 2010, you first appeared before an adult court in relation to some minor charges; they were adjourned without conviction.

40 Your next court appearance was in March 2021, when you were convicted in the Magistrates' Court of multiple offences, including recklessly causing injury, two assault charges, and some property and drug offences. You were sentenced to 81 days' imprisonment (time served), and put on a 12 month community correction order; you had almost completed the CCO at the time of these events.

41 The March 2021 sentence related to several different incidents in a two year period. In May 2019, you wielded a knife in the direction of two people in a supermarket, when you were challenged by them whilst shoplifting. In January 2021, you attacked two different people at a boarding house, within a one-hour period. You punched one of them multiple times, and held a knife to his neck, as you demanded to know where your bag was. The other victim was a woman who was unknown to you; you punched her three times from behind, after a verbal confrontation with you. These incidents are similar to the current offending, in so far as they involve a violent overreaction by you to a perceived threat.

42 There was a period of 10 years during your twenties when you were living a largely stable life, working, engaging in various leisure activities, and not offending. During that time, you had reconnected with your father, who was in poor health. After your father died in 2018, your life fell apart; you became homeless again and resumed serious drug use.

43 The fact that you were able to live a relatively stable life for such a long time, notwithstanding your background and mental health problems, indicates that you do have prospects for rehabilitation, provided you remain drug free. Hopefully, the sort of treatment and interventions identified by Ms Cidoni will be made available to you in custody and on parole, thereby promoting your rehabilitation and community safety.

44 You were charged with murder in March 2022. In July 2022, you were committed to stand trial in the Supreme Court through the "fast-track" procedure. In October 2022, the prosecution filed an indictment charging you with manslaughter, not murder, after they had an opportunity to assess a number of prosecution witnesses who had been cross-examined in this court. You spent about seven months under the burden of facing a murder charge.

45 You have been in custody since 17 March 2022. Although the conditions in custody since then have not been as harsh as they were at earlier stages of the pandemic, I accept that your experience in custody has been made somewhat more difficult by COVID-related restrictions.

46 Shortly after the manslaughter indictment was filed, you raised the possibility of seeking a sentence indication. In November 2022, a timetable was set for the hearing of a sentence indication, and a provisional trial date was set for August 2023 (in case the matter did not settle earlier). Immediately after I gave you a sentence indication on 16 March 2023, you pleaded guilty to manslaughter.

47 I treat this as a relatively early plea of guilty.

48 You are entitled to a discount on the sentence to be imposed upon you in recognition of your guilty plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. Because of your plea, witnesses, and the family and friends of Mr Barnett have been spared what would have been a traumatic trial for all concerned.

49 During the early stages of the COVID-19 pandemic, the criminal justice system became severely congested, and jury trials were unable to proceed at all, or were delayed. In a case called Worboyes,[1] the Court of Appeal said that there were several reasons why a plea of guilty should be given additional weight during the pandemic, because it carried a greater utilitarian benefit than at other times.[2]

50 In fact, the Supreme Court has now cleared its pandemic backlog. Indeed, as the above timeline shows, by utilising the "fast-track procedure" your case proceeded more quickly than it ever would have before the pandemic. Custodial conditions are largely back to what they were before the pandemic. In such circumstances, it might seem strange, or even illogical, to allow a Worboyes discount in this particular case. However, the Court of Appeal has recently held that, for the sake of consistency, Worboyes discounts (even if modest) must continue to be given in all courts for so long as any of them are experiencing pandemic-related delays.[3]

51 Apart from any remorse that is inherent in your plea, there is evidence that you genuinely feel sorry for Mr Barnett's death. You have been struggling with poor sleep and nightmares about the incident, and anti-depressant medication has done little to manage that distress. At the same time, given your psychological make-up, you still genuinely believe that you were acting in self-defence.

52 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment of 8 years. I fix a period of 5 years as the period you must serve before you become eligible for parole.

53 Had you not pleaded guilty, I would have sentenced you to a total effective sentence of 10 years' imprisonment, with a non-parole period of 7 years.

54 Further, I declare that the period to be reckoned as already served under this sentence is 413 days, not including today's date. I direct that there be noted in the records of the court the fact that such a declaration was made and its details.

[1] Worboyes v The Queen [2021] VSCA 169.

[3] Biba v The Queen [2022] VSCA 168, [26].