DPP v Closter [2014] VSC 484

Supreme Court of Victoria|2014-10-02|Before: HOLLINGWORTH J

CRIMINAL LAW - Sentencing - Manslaughter - Affray - Accused instigated a violent, unprovoked public attack on other youths - Accused chased and punched deceased, as he was trying to back away - Guilty plea - Remorse - Youthful offender - Good prospects of rehabilitation - Total effective sentence of 9 years 3 months' imprisonment with a non-parole period of 6 years

1 Dylan John Closter, you have pleaded guilty to one charge of manslaughter and one charge of unlawfully making an affray.[1]

2 The charges arose out of a violent incident which took place at Rye in the early hours of Monday 31 December 2012, which left David Cassai dead and five of his friends injured.

3 On Sunday 30 December, you spent the evening with some friends, including your co-accused, Tyrone Russell and Thomas McCluskey (also known as McCluskey-Sharp). After having a few drinks at the caravan park where you were staying, you had dinner at the Rye Hotel, before spending time at the Rye carnival. After the carnival closed, your group moved to an area near the Rye pier, where you were joined by others. You left briefly around 11.00 pm, to buy a bottle of Galliano liqueur; you returned to the group and drank the bottle with a few of your friends.

4 There were a number of groups of young people near the Rye foreshore that night. One of these groups included David Cassai and nine of his friends. They were strangers to you and your group.

5 The Cassai group had been celebrating a birthday at the Portsea Hotel. They had been drinking, and were in varying stages of intoxication. They left Portsea on a bus at 12.30 am, heading for Rosebud, where they were staying. However the bus only went as far as Rye, so they proposed to walk the rest of the way. Around 12.45 am, they started walking along Point Nepean Road, towards Rosebud, spreading out into smaller groups as they walked. They were on the other side of the road to your group.

6 As they walked along past the shops, one of Mr Cassai's friends, Jesse Smith, removed a street sign from its bracket. He trotted along for a while, carrying the sign like a lance or spear, towards the front of his group; he was trying to be funny. Some of Mr Smith's friends asked him to put the sign down. You saw what Mr Smith was doing, and yelled at him to put the sign down, however he continued down the road with it. You began to walk across the road, in Mr Smith's direction, as you repeated your demand that he put the sign down. Eventually, Mr Smith did put the sign down, after carrying it for a little over 50 metres. At no stage did Mr Smith use, or threaten to use, the sign as a weapon directed at anybody.

7 By this stage, David Cassai and his friends, Andrew John and Vincent Tran, were walking three abreast along the footpath, bringing up the rear of their group. After crossing the road, you walked towards them, deliberately shoving your shoulder into Mr Cassai as you walked past him. You both stopped. Mr Cassai asked what you were doing. After a brief exchange of words, Mr Cassai and his friends started walking away. You asked him if he wanted to fight. He told you to get fucked and keep walking. Andrew John and Vincent Tran had their hands up, palms facing outwards, in an attempt to calm the situation; they were telling you just to leave it alone.

8 You walked straight towards Mr Cassai, holding your arms up like a boxer, and started taking big swings at his head. Mr Cassai backed away, shouting out "What are you doing?" Eventually, one of your punches did connect with Mr Cassai, causing him to stumble backwards onto the road.

9 Around this time, some of your friends, including Mr McCluskey and Mr Russell, ran across the road to join you. After your friends entered the fray, things unfolded quickly and violently. While there are some differences in the accounts given by witnesses, CCTV footage from various security cameras captured much of what happened after your initial attack on Mr Cassai.

10 At one stage, you punched Mr Tran to the face, injuring his jaw. This assault had been the subject of a separate charge on the previous indictment, but is now encompassed by the charge of affray.

11 As Mr Cassai got back up from the ground, one of his friends, Vasu Phillips, came in to help him, and another friend, Andrew John, stood between you and Mr Cassai. You punched Mr John to the head, causing him to fall onto the road. This assault is now also encompassed by the charge of affray.

12 You continued to run after Mr Cassai, as he backed away from you. Your friends, Mr Russell and Mr McCluskey, were close beside you at this stage, bearing down on some of Mr Cassai's friends.

13 Vasu Phillips ran back towards the altercation, to try to calm things down. He had his hands in the air, with open palms out. As he turned away, Mr McCluskey punched him to the face.

14 Julian Geldard and Jesse Smith also ran back towards Mr Cassai and their friends. As Mr Geldard tried to break up a scuffle, Mr Russell punched him to the face, causing him to fall sideways on the road. Almost immediately thereafter, Mr Russell punched Mr Smith to the face, causing him to fall to the ground too.

15 At one stage, after swinging another powerful punch in the direction of Mr Cassai, you appeared to lose balance and fell to the ground. It is not clear from the CCTV footage, but I accept that Mr Cassai kicked you once, albeit in a defensive manner, while you were on the ground, in an attempt to stop you attacking him.

16 You got to your feet and continued chasing Mr Cassai, who was still trying to retreat from you, walking backwards with his hands up in a passive way. You took several steps towards him and punched him to the side of the head, with a swinging, round arm movement of your right fist. Mr Cassai immediately fell backwards, onto the ground, without taking any step to break his fall. He hit the back of his head on the footpath, fracturing his skull, and suffering the traumatic brain injuries that led to his death later that same day. After inflicting this punch, you appeared to bounce around on your feet like a boxer for a short while, before walking away and leaving the scene.

17 You and your friends then crossed the road, towards the car park. Witnesses heard your group running and laughing, with someone yelling out words to the effect of "that's what we come here for". You and some of your friends drove off.

18 You and Mr McCluskey went together to the police early on 2 January 2013, around the same time as Mr Russell was handing himself in to the police in Western Australia. That was after some CCTV footage of the incident had been shown on television, and after two of your group[2] had already been arrested and made statements to the police. By that stage, it would have been apparent to you and your co-accused that you either had been, or would shortly be, identified; handing yourself in to the police in those circumstances seems to have been driven by pragmatism, rather than remorse.

19 That last comment is particularly reinforced by the approach you took in your record of interview. Given the number of people who must have observed your actions that night, together with the existence of CCTV footage, denying any involvement at all in the incident would have been foolish. Although you did make some admissions to the police, you very much sought to minimise and justify your role. You denied chasing anyone, and said you had only thrown one punch at one person. You did not demonstrate any contrition; instead, you alleged (somewhat half-heartedly) that you were acting in self-defence.

20 You persisted in alleging that you were acting in self-defence during the committal, right up until the time when you offered to plead. In pleading guilty, you have accepted that you were not in fact acting in self-defence.

21 What happened that night was entirely of your making.

22 Upon seeing Jesse Smith mucking about with the street sign, you became so angry and aggressive that you yelled out at him and crossed the road towards the other group. Even accepting that your initial intention was only to engage in some sort of verbal confrontation, you resorted almost immediately to physical violence.

23 The primary object of your violence was David Cassai, a young man who had said and done nothing to provoke your gratuitous attack on him. You repeatedly chased after him, trying to punch him, even though he and his friends were trying to back away from you and defuse the situation. By the time you inflicted the fatal blow, some of your friends had joined in the violence, leaving Mr Cassai's friends injured or too busy defending themselves to help him out.

24 True it is that you did not use a weapon. Nor did you hit Mr Cassai from behind, or when he was down on the ground. But the number of punches that you threw at Mr Cassai and others, in such a short space of time, and while they were trying to get away from you, demonstrates the ferocity of your attack.

25 The affray involved a violent, frightening and completely unprovoked attack by you and members of your group on another group, in the middle of the night, on a public street, at a busy time of year. In the space of less than a minute, multiple punches had been thrown, one man was dead and five others were injured. David Cassai and his friends were not acting aggressively, and were trying to defuse the situation and retreat; this was very much a one-sided attack. You started the affray, and remained the principal aggressor throughout. A bystander of reasonable firmness and courage might reasonably be expected to have been terrorised by seeing people being chased and knocked to the ground in circumstances such as these. For someone in your group to have yelled out something like "that's what we come here for", as you left the scene, would only have added to that terror.

26 Although the exact amount consumed by you that night is unknown, the only explanation offered for your behaviour is that you were affected by alcohol. That may explain, but it does not excuse, your behaviour.

27 Before I consider your personal circumstances, I want to say something of the impact your actions have had on others.

28 David Cassai was 22 years old when he died. He was part of a close-knit family, and lived at home with his mother, Caterina, and his sisters, Elisa and Luisa. He maintained contact with his father, Paul, after his parents separated during his childhood. He had been in a relationship with his girlfriend, Esha, for about three years. He was close to many members of his extended family.

29 After leaving school, David Cassai completed an apprenticeship as a landscape gardener; he was hard-working and passionate about his work.

30 It is clear from the many eloquent victim impact statements provided by his family and friends that David Cassai was a much loved and respected young man: fun-loving, adventurous, charismatic, generous, optimistic, and genuinely interested in others. So many people have described him as their best friend, or as the glue that held their group of friends together.

31 His death has profoundly affected those who loved him, in so many different ways.

32 Waiting in the hospital, not knowing whether he was going to live or die, was particularly traumatic for his loved ones. New Year's Eve will always be a painful reminder of their loss, rather than a cause for celebration.

33 Some of David Cassai's friends have had to deal with their own physical injuries from the incident. Those who were there have also struggled emotionally, trying to make sense of what happened that night; some have felt guilt or helplessness at being unable to protect or save their friend.

34 There is nothing this court can say or do that will bring back David Cassai, or make up for his loss. There is no sentence this court could impose that would fill the deep hole that his death has left in so many lives.

36 You were born in Melbourne in March 1994, and grew up around the Yarra Valley area.

37 Your parents separated when you were in your early teens, and you and your two brothers went to live with your father.

38 You struggled academically at school, but enjoyed sport and outdoor activities. You left school when you were 15, and started a plumbing apprenticeship. You completed your apprenticeship, and have continued working with the same employer since then.

39 Nearly 60 people provided positive references for you, within the space of only a couple of days. Your employers describe you as diligent, hard-working and polite; they remain supportive of you. Many of your referees describe you as quiet and reserved, a respectful young man. Time and again, your referees speak of how your actions on the night are completely out of character with the person they know.

40 You have no history of violence or other antisocial behaviour, or ongoing problems with alcohol or drug abuse. You also have no prior convictions, and have never been in trouble with the police apart from this incident.

41 Tragically, your immature, alcohol-fuelled actions have damaged so many lives, including your own.

42 In August 2013, you were committed to stand trial. The trial was set down to commence on 4 August 2014. Shortly prior to the empanelment of the jury, on 5 August, you entered a plea of guilty. This was the first occasion on which you had offered to plead.

43 You are entitled to a discount on the sentence to be imposed upon you in recognition of your 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 of these charges against you. The family and friends of David Cassai and the other victims of the affray have been spared what would undoubtedly have been a very traumatic trial.

44 You have become withdrawn, depressed and anxious since these events, as you have come to terms with the enormity of what you have done. Although it has taken some time to develop, I accept that you are now genuinely remorseful.

45 Your age is a very relevant sentencing consideration. You were 18 at the time of the offending. You are now 20.

46 The law says that the youth of an offender, particularly a first-time offender, should be a primary consideration for a sentencing court where the matter properly arises. In the case of such an offender, rehabilitation is usually far more important than general deterrence; rehabilitation benefits the community as well as the offender. Of course, those principles are not immutable, and due regard must be had in each case to other relevant matters, including the seriousness of the offence. In sentencing you, I am mindful of the fact that these are serious instances of serious offences, particularly the offence of manslaughter.

47 I accept that you have good prospects of rehabilitation: your otherwise good character, strong work ethic, family and community support, and absence of addictions or mental health problems, all point in that direction.

48 Whilst I accept that your violent behaviour on this occasion was uncharacteristic, it is concerning that excessive alcohol caused you to engage in such senseless, unprovoked violence against so many people. There still remains some need for specific deterrence in this case.

49 In addition, although rehabilitation is an important sentencing principle in this case, general deterrence still has a role to play. There is a clear need to deter others from engaging in random, unprovoked, late night, street violence. This type of conduct also needs to be denounced and punished.

50 On 25 June 2014, I sentenced Mr Russell in respect of his role in these events.[3] I sentenced him to a total effective sentence of 15 months' imprisonment, with a non-parole period of 8 months.[4] I agree with the parties that parity is not particularly relevant in this case.

51 Mr Russell's actions and moral culpability were considerably less than yours; he came into the affray part way through it, having misperceived the situation and thinking that you required assistance. On the other hand, you started the affray and were the principal aggressor throughout it.

52 Furthermore, Mr Russell's role in the affray was largely constituted by the same acts of violence which constituted his separate offences of recklessly causing serious injury and injury. On the other hand, your role in the affray involved substantially more than killing Mr Cassai, and included your assaults on Mr Tran and Mr John. That needs to be reflected both in the sentence to be imposed for affray, and the degree of cumulation between your two sentences.

53 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 9 years' imprisonment.

54 For the offence of affray, I sentence you to 15 months' imprisonment.

55 I order that 3 months of the sentence imposed for affray be accumulated on the sentence for manslaughter.

56 That makes a total effective sentence of 9 years and 3 months' imprisonment.

57 I fix a period of 6 years before you become eligible for parole.

58 I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to a total of 11 years and 6 months' imprisonment, with a minimum non-parole period of 9 years.

59 Further, I declare that the period to be reckoned as already served under this sentence is 65 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

[1] The maximum sentence for manslaughter is 20 years' imprisonment; the maximum for affray is 5 years' imprisonment.

[2] Mitchell Robinson and Dereck Perawiti.

[3] The remaining co-accused, Mr McCluskey, has not yet been sentenced.

[4] Mr Russell was sentenced to imprisonment of 12 months for recklessly causing serious injury, 7 months for recklessly causing injury (2 months of which was accumulated) and 10 months for affray (1 month of which was accumulated).

At a glance

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Judgment (64 paragraphs)

Parties