DPP v McDonald [2017] VSC 465

2 You had previously been tried in March 2016, but the jury in that trial were discharged on 21 March 2016 without verdict.[1]

3 You offered to plead guilty to defensive homicide on 9 October 2014 prior to the contested committal. A further offer was made by you to plead guilty to defensive homicide or manslaughter on 23 February 2015 prior to the first trial but your plea was not accepted by the Crown.

4 The circumstances of your crime were as follows. You shot Michael Jones from the driver's seat of your Holden sedan at 7.24 am whilst he was walking near the corner of Ebony and Blackwood Parade, Heidelberg West. Paramedics attended the scene promptly but were unable to detect signs of life and Mr Jones was declared deceased at the scene at 7.35 am.

5 Your co-accused, Daniel Vega,[2] was seated beside you in your car when you fired the shot. He said he had no inkling that you would shoot at Mr Jones when Mr Jones unexpectedly appeared and stepped out onto the roadway.

6 Vega pleaded guilty on 30 November 2015 to one charge of assist offender for his role in helping cover up the offence. He was sentenced on 1 December 2015 for that offence.[3] He undertook to give evidence for the Crown and became the principal Crown witness in your trial.

7 The shooting was perpetrated with a sawn-off shotgun. The verdict of the jury on your trial implies acceptance of the version put forward by you in your police interview - that when you saw Michael Jones striding towards your car, you fired the gun impulsively. Your action in firing the gun through the driver's side window of your car was the culmination of a series of mischievous interactions that occurred during the preceding night between yourself and Vega and the deceased and his associates.

8 It is necessary to outline some of the factual narrative so that the context of your offending can be better understood.

9 At the time of the events you were a daily user of methamphetamine. Your partner Maddison Power was also a user. The two of you had befriended Vega in March 2014 in circumstances where Vega claimed that he was being held against his will at a farm in Sunbury where a drug manufacturing operation was occurring. Vega confirmed in his evidence at trial that you and Ms. Power had rescued him from the farm, and that together you developed a plan to steal amphetamine-manufacturing glassware, some chemicals and a rifle from the occupants of the farm. It was hoped that the stolen items could be sold to fund a planned relocation to Tasmania, where each of you would attempt to recover from your methamphetamine addiction.

10 The audacious theft was carried out as planned and you began to inquire amongst your friends about possible purchasers for the stolen items. You were introduced by telephone to the occupants of a factory in Korong Road, Heidelberg West, and you made arrangements to meet the potential purchasers at the factory. You visited the factory to conduct negotiations on two occasions.

11 You arranged at the first visit to retrieve the chemicals and glassware from where you had stored them and to bring them back for inspection. Before you returned to the factory for the second time, you deposited the glassware at the home you shared with Ms Power in nearby Coral Street. However, when you returned with Vega to the factory, the atmosphere had become rather hostile. Michael Jones was present, along with several other associates who had not been present for the earlier visit. You began to suspect that you had been connected to the thefts from Sunbury and that Mr Jones was in touch with the owners of the contraband. This concern was enlivened when you were subjected to intense questioning whilst a knife was brandished by Michael Jones. The roller door of the factory had been closed after you on this occasion. It also emerged that the deceased had met Vega in the distant past, and that the past meeting did not go well.

12 You negotiated to be allowed to leave the factory on the pretext of showing the glassware to Michael Jones. You took him back to your home address and into the laundry where he photographed the equipment with his phone and arranged to meet you both later on. He was then driven away by you and dropped off in a nearby street.

13 Fearing that you were being set up to be ripped off you took precautions before meeting Mr Jones again that night. You armed yourself with an unregistered sawn off shotgun that you had retrieved from your house and you went with Vega to a discreet position in Malahang Reserve, adjacent to your house. Mr Jones was sitting on a park bench also in Malahang Reserve. You stayed hidden and some telephone calls were attempted between Vega and Mr Jones around 4 am but nothing came of them. You then observed some suspicious vehicles circling the area and saw some intruders entering your home in Coral Street. You assumed that the intruders were associates of Michael Jones and that they were after the stolen glassware which was believed to be very valuable.

14 You knew that Ms Power was present inside the dwelling. Ms Power had the care of two children whom you regarded as your stepchildren. You believed both children were at home with her at the time of the home invasion and you became very anxious about the welfare of Ms Power and the children. In fact, only one child was present with Ms Power at the time of the burglary. At 5.41 am, an aborted call was made to 000 at your instigation from the mobile phone of Vega. Apparently the phone malfunctioned although a record of the attempted call exists.

15 Eventually you and Vega made your way to the home of Gary Piper in nearby Ramu Parade. Witnesses who were present there described your demeanour as upset and paranoid, complaining that Mr Jones had ripped you off and run through your house. You were seen loading the shotgun at those premises. One of the witnesses, Mr Miller, said that you were agitated and not making sense, and he observed that Vega was 'winding you up' about the run through of your home.

16 When you drove off from Ramu Parade, you had the shotgun on your lap. However, your intention was to leave the area because you feared being outnumbered in a confrontation with Mr Jones and his associates. As you were driving through the back streets of Heidelberg West, you were taken by surprise when Michael Jones appeared in front of your car whilst you were turning from Calola Street into Ebony Parade.

17 Mr Jones had just left his home address in Lancewood Avenue on foot, and was walking along, alone and unarmed. According to your account, Mr Jones made a 'V-line' (sic) for your car and you responded by discharging your shotgun from a distance of several metres, through the driver's side window, in the direction of Michael Jones. He was mortally injured, having received a penetrating wound to his chest. Your actions in firing a gun towards Michael Jones were totally reprehensible. Mr Jones at that moment was not presenting any threat to you and you had the option of simply driving away.

18 You told police that you feared that the deceased was holding a gun in his hand when you shot him. I do not accept that explanation. However the jury must have accepted that you reacted spontaneously and without proper thought in response to the pressures of the night. It is likely that your actions were also influenced by a combination of anger, fear, paranoia and the effects of methamphetamine, but none of those matters excuse your criminal conduct.

19 Following the shooting, you immediately drove away and took steps to dispose of the shotgun and avoid responsibility for your actions. In the days that followed, you fled with Vega to Brisbane, but having no means of support there, you returned to Victoria and continued to avoid the notice of police. You were arrested by police on 13 April 2014 and admitted your involvement in the shooting, claiming you acted in self-defence.

20 You told police you did not take aim and did not mean to shoot the deceased. You estimated that Jones was five to six metres away when shot. Your account that you believed that the deceased had something in his hand when he appeared in front of your car was not assisted by Vega's evidence that Jones was not holding anything when he was shot. It was also not assisted by the fact that whilst in prison you had sought to persuade Vega to adopt a different version.

21 It can be appreciated from the above summary of facts that your offending arose in the context of drug abuse and drug-related crime. You should not have had possession of the sawn-off shotgun and were in fact prohibited by law from possessing a firearm. Possession of the gun in those circumstances, and the carriage of it whilst under the influence of drugs, is an aggravating feature of your crime. The Crown submitted that the discharge of the firearm was a deliberate act and that this created a point of distinction from some other cases of manslaughter involving the discharge of a gun.[4]

22 Some of the cases referred to by the Crown involved manslaughter by criminal negligence in circumstances where the shooting was partly accidental.[5] Those factors are distinguishable, although many of them also involve the aggravating feature of possession and handling of firearms in unlawful circumstances when substance affected.[6] A common feature of cases for manslaughter by unlawful and dangerous act is the tendency for young men sporting illegal guns to become emboldened in the face of a perceived threat and to respond impulsively with little thought as to the consequences.

23 In this case your first response to witnessing the intrusion to your home was appropriate: calling 000. Had you followed through with that approach you would not be in prison and Mr Jones might still be alive today. Michael Jones, was in a public street, unarmed and alone when he was shot and those circumstances make your conduct a serious example of the crime of manslaughter. Manslaughter is a grave crime involving the irreparable loss of a human life and ongoing repercussions for those left behind.

24 Victim impact statements were received from Lois Jones, mother of Michael Jones, and Bianca Jones, half-sister of Michael Jones.[7] Mrs Jones describes how she is still seeing a psychologist to cope with the loss of her only son, and she attached a report from Mr Clifopoulos[8] as an adjunct to her statement. The victim impact statements attest to the grief and trauma suffered by the family of Michael Jones and the court acknowledges that any sentence imposed in this case will offer little comfort to those who loved him.

25 Turning to your personal circumstances, you are 49 years old and have been on remand in prison since your arrest. Your upbringing involved significant disadvantage. You were one of eight children. Your father was a painter and docker by occupation. Your mother is of aboriginal descent, and I was informed by your counsel Mr Johns that you identify with your aboriginal heritage. An older brother died soon after you were born and that caused you to feel rejected from a young age. Family life included frequent violence, and your father drank to excess. There were frequent police attendances and your father would become violent towards police.

26 Records from the Royal Children's Hospital refer to you as an uncontrollable child and appear to speculate about the cause of this. You reported to one psychologist[9] that you were an extremely hyperactive child, and you thought that you had been diagnosed with ADHD. You seem to have been regarded as a failure by your parents, and you struggled with school socially and academically. You were injured in a car accident during your early childhood, but there is no solid evidence as to the extent of injuries received in that accident.

27 By the age of 11 you were placed in St Vincent's Boys Home, where your remained throughout your adolescence. But even there, you did not get proper schooling. Worse still, you were subjected to persistent physical and sexual abuse by one of the carer's at the home. You have made a statement to the Royal Commission into Institutional Responses to Child Sexual Abuse about what was done to you at this time. You gained little in the way of literacy or numeracy and it seems that you had few role models or positive experiences. You believe that your experience in the boys home and in youth detention facilities set you up for gaol, and your counsel explained that you abused cannabis and amphetamine from a young age as a form of escapism. Unfortunately, at age 12, on weekend respite from the home, your father introduced you to cannabis for the first time. Your first experience of adult prison was at the age of 17 and it would seem that you had a lot of unresolved anger at that time.

28 Your ongoing substance abuse led to involvement in the offending set out in your prior criminal history including car thefts, drug offences, weapons related charges, reckless conduct endangering life, and other crime with frequent periods of imprisonment or detention throughout your later adolescence and adult life. The Crown submitted that although your prior convictions involved less serious criminality, the frequency of your offending was relevant to an assessment of your prospects for rehabilitation and to specific deterrence.

29 Your most significant relationship has been with Ms Power who was required to give evidence for the Crown about the events at her home on the night before the shooting. Ms Power was present at various stages of the trial as support for you, and she provided a written testimonial to the court.[10] Apart from your relationship with Ms Power, which is now of a platonic nature, you have a 22-year-old son, Dylan, from an earlier relationship, and you have tried to stay in touch with him.

30 A psychological report dated 4 January 2017 was prepared for your plea by David Ball[11] and tendered on your behalf,[12] along with an earlier report of Mr Jeffrey Cummins[13] that had been prepared for a prior matter.[14] Mr Ball summarised your personal history and performed some psychometric testing on you. Mr Cummins report made reference to your circumstances in 2009 as showing significant rehabilitative steps despite the difficulties you were having at that time adjusting to life after completing parole a few years earlier. It was Mr Cummins' opinion in 2009 that you were significantly institutionalised, and that you were depressed and anxious. You had been placed on mood stabilising medication, but still tended to abuse drugs.

31 Despite David Ball's assessment that your intellect was in the very low range, it was not apparent from the earlier report of Mr Cummins that he had observed any significant intellectual deficits. As a result of this apparent anomaly your plea was adjourned and a neuropsychological report dated 11 April 2017 was obtained from Martin Jackson.[15] Mr Ball then provided an addendum to his report dated 5 May 2017.[16] Records from the Royal Children's Hospital were also tendered on your behalf as relevant to your medical and psychological background.[17]

32 The subsequent neuropsychological testing by Martin Jackson[18] found that your intellectual capacity was not as low as had been assessed by David Ball, and that whilst you are low functioning or borderline in some areas, in other aspects your functioning was average or below average. It was not submitted on your behalf that there was a causal link between aspects of low intelligence and the offending, or that Verdins[19] principles applied, especially in light of the contribution of other factors such as methamphetamine use. However Mr Johns did mark out for attention cases which refer to aboriginal offenders and to offenders who have suffered severe disadvantage in their early life leading to entrenched substance abuse from a young age.[20] Indeed it is apparent from each of the expert reports that your life has been marked by trauma and deprivation, and that you will require a great deal of support when you are ultimately released if you are to avoid falling back into a lifestyle which has drug abuse as its central feature. You described yourself as institutionalised when interviewed by Jeffrey Cummins in 2009, yet in spite of that, you did make some gains in that period through the support of a welfare worker, before later falling back into a cycle of drug addiction and drug affected behaviours.

33 Prior to your remand you were on a disability pension and living with Ms Power and her two children. You have now spent over three years on remand and have been housed in protection as a result of a classification made during an earlier period of imprisonment. You have kept busy during your time on remand working in various billet positions.

34 A reference was provided on your behalf from the Anglican Chaplain William Beagley who attests that you have been a consistent attender at church services in prison during your period in remand and that you have often told him of your regret over events that led you into prison.[21] Mr Beagley noted that you have encouraged other prisoners to attend for worship services. Mrs Shaba, your mother, has written about your difficult family life and how she now regrets placing her trust in the St Vincent's Boys Home.[22] Maddison Power attests that she has known you for ten years and she remains supportive. She notes that you have expressed personal disappointment over your actions and turned to the church to seek forgiveness.[23]

35 Mr Johns submitted that evidence of remorse could be gleaned from your record of interview, what you said to Ms Power after the shooting, your willingness to plead guilty to a lesser offence and to the testimonials referred to above. I accept that those matters support a submission that you are sincerely remorseful. Your prospects for rehabilitation are reasonable, in light of my findings about remorse, although it will be necessary for you to overcome your reliance on illicit drugs and develop greater psychological resilience if you are to avoid falling back into criminal offending when you are released from prison.

36 The prosecution concedes that you are entitled to the benefit of your early offer to plead guilty to defensive homicide or manslaughter, in circumstances where you have ultimately been found guilty of the lesser offence of manslaughter. I will therefore sentence you on the basis that your offer to plead guilty at an early stage indicates an acceptance of criminal responsibility for a lesser form of homicide, and deserves recognition for the intrinsic utilitarian value as well as being indicative of remorse. In this regard I note that your counsel did not argue before the jury for an outright acquittal on the charge of murder. I am obliged to apply the principle of parsimony under s 5(3) Sentencing Act 1991 that prohibits a court from imposing a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is to be imposed.

37 The parties submitted a number of cases involving manslaughter where a gun was unlawfully fired and I have had regard to those cases as providing an indication of current sentencing practice for the crime of manslaughter.

38 In R v Munt & Ors,[24] Coghlan J imposed a sentence of 11 with a minimum of eight years for the pointless shooting of a person who was walking towards a van carrying a television. The ice-affected offender apparently believed that the victim had stolen his friend's van. His Honour observed that since the case concerned the deliberate shooting of a firearm, it was at the more serious end of the spectrum for offending of this kind.[25] That case also concerned unlawful and dangerous act manslaughter.

39 In R v Howard[26] Macaulay J imposed a sentence of eight years with a minimum of five when the offender deliberately took a loaded handgun to a confrontation with the victim whom he believed had assaulted his adult daughter. His Honour considered that the conscious choice to take the loaded gun to the victim's premises placed the offence somewhat above the mid-range for the crime of manslaughter.[27]

40 A lesser sentence of eight years with a minimum of four years was imposed by Lasry J after a trial in R v D'Angelo.[28] In that case, the offender discharged a firearm whilst panicked and intoxicated but did so with the object of scaring away intruders including the victim. He was sentenced to eight years with a minimum non-parole period of four years and six months. R v Rapovski[29] was a case in which the offender was sentenced by Croucher J to eight years with a minimum of five years after accidentally discharging a sawn-off shotgun into the face of the victim who was the offender's friend. The accused pleaded guilty in that case to unlawful and dangerous act manslaughter.

41 In R v Torun,[30] Croucher J imposed a sentence of eight years with a minimum of five years for unlawful and dangerous act manslaughter. In that case, the offender under the influence of ice waved a gun around and discharged it, shooting his girlfriend, having forgotten in his drug addled state that the gun was loaded. The sentence imposed was upheld on appeal.[31]

42 The Court of Appeal in DPP v Phillips[32] increased the sentence of a male offender who discharged a firearm after an altercation outside his home with a drunken man. The altercation had concluded but the offender had gone off and armed himself before returning and shooting the victim whilst the victim was walking away. The Court of Appeal held that it was wrong to characterise the conduct in that case as falling towards the lower end of the range of seriousness.[33] The sentence of six years with a minimum of four was increased to nine years with a minimum of seven years.[34]

43 On the other hand, in R v Stratton[35] the appellant had entered residential premises at night to steal cannabis. He shot in the direction of an occupant without aiming directly at the victim and pleaded guilty to unlawful and dangerous act manslaughter. The sentence was reduced on appeal from 11 years with a minimum of eight, to nine years with a minimum of seven.[36]

44 R v Kells[37] did not involve a firearm but involved a killing by the female offender of her partner after a long night of frustration and angry conflict. The offender was acquitted of murder and found guilty of manslaughter after earlier offering to plead guilty to the lesser offence. Justice Macaulay imposed a sentence of eight years with a minimum of five years having noted the evidence of psychological dysfunction and difficulties the offender had in relationships with men generally.

45 It can be seen from this brief survey of cases proffered by the parties that disparate sentences have been imposed depending on the objective gravity of the offending. Also considered is whether there were any significant provocative acts in the lead up to the crime, the personal characteristics of the offender, any offers to plead guilty or expressions of remorse, and an assessment of any circumstances of aggravation or mitigation. Whilst your offending is less grave than that of the offenders in R v Munt and DPP v Phillips, it is more grave than the offender in R v D'Angelo and in R v Torun and R v Rapovski.

46 I have surveyed the Sentencing Advisory Council's statistical information regarding sentences for manslaughter. In the case of R v Lai,[38] Croucher J made reference to sentences for manslaughter captured by statistics provided by the Sentencing Advisory Council.[39] The figures showed for the period from 2009-10 to 2013-14, prison sentences for manslaughter ranged from three to fourteen years' imprisonment; the average sentence ranged from about six years and nine months' imprisonment in 2013-14 to just over eight years' imprisonment in 2009-10 and 2012-13; and the median sentence was eight years' imprisonment.[40]

47 The most recent Sentencing Snapshot for manslaughter for the period 1 July 2011 to 30 June 2016 shows that the median sentence remains at eight years imprisonment.[41] The graph of sentences provided by the Sentencing Advisory Council is a useful guidepost, but there are multiple factors that need to be considered in arriving at a just sentence.

48 The sentence I impose must reflect the relevant purposes set out in s 5(1) of the Sentencing Act 1991, being general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation. Of these factors, general deterrence and denunciation are especially important. It is all too often that this Court is called upon to sentence offenders for homicide where the genesis of the offending involved the toting of illegal guns, abuse of amphetamines or like substances and the false bravado that accompanies such conduct.

49 I also consider that specific deterrence deserves some weight in your sentence although there is reason to hope that you have now gained greater insight into your own failings. Community protection can be best achieved if you are encouraged to foster that insight and use all available assistance to reform yourself whilst serving your sentence and upon release. Your rehabilitation may have been assisted by the opportunity provided to you to contribute a statement to the recent Royal Commission, as a result of your childhood experiences in the St Vincent's Boys Home. I am also cognisant of the fact that you will be of more mature years when your sentence of imprisonment is completed.

50 In light of all the matters to which I have referred I have decided to impose a sentence that makes provision for your rehabilitation towards the end of your sentence.

51 For the manslaughter of Michael Jones you are sentenced to nine years imprisonment. The minimum non-parole period will be fixed at seven years.

52 I declare that you have already served 1219 days not including today which is to be reckoned as already served by way of presentence detention under s 18 of the Sentencing Act 1991.

[1] Following a 12-day trial, the jury were unable to reach a verdict.

[2] The name of the co-accused has been replaced by a pseudonym.

[3] DPP v Vega [2015] VSC 683 (1 December 2015). Vega was sentenced to two years and four months, with a minimum non-parole period of 582 days.

[4] The following cases involved accidental discharge of a gun, either because pulling the trigger was accidental, or pulling the trigger was deliberate but done with the belief that the gun was not loaded, therefore accidentally discharging the gun: R v Torun [2014] VSC 194 (6 May 2014); R v Rapovski [2016] VSC 706 (1 December 2016); R v Lai [2015] VSC 346 (31 July 2015); R v Nguyen [2010] VSC 528 (19 November 2010).

[5] R v Lai [2015] VSC 346 (31 July 2015); R v Nguyen [2010] VSC 528 (19 November 2010).

[6] See also, R v Torun [2014] VSC 194 (6 May 2014); R v Rapovski [2016] VSC 706 (1 December 2016); R v Nguyen [2010] VSC 528 (19 November 2010); R v Munt & Ors [2014] VSC 675 (22 October 2014); R v D'Angelo [2014] VSC 522 (16 October 2014).

[7] Tendered as Prosecution Exhibit 1 on Plea.

[8] A psychologist who was treating Lois Jones for anxiety following the death of her son.

[9] Report of Dr Martin Jackson dated 11 April 2017. Tendered as Defence Exhibit 8.

[10] Tendered as Defence Exhibit 10 on Plea.

[11] MAPS, MIACN (Cert) Psychologist and Clinical Neuropsychotherapy Practitioner; BEd (Counselling); GradCert (Family Therapy), BA (Psych); Principal at Central Melbourne Psychology.

[12] Tendered as Defence Exhibit 4 on Plea.

[13] MAPsS, Consulting, Clinical & Forensic Psychologist.

[14] Report of Jeffrey Cummins, dated 23 June 2009. Tendered as Defence Exhibit 5 on Plea.

[15] Principal, Martin Jackson Neuropsychology; Clinical Neuropsychologist, MSc.

[16] Report Addendum of David Ball, dated 5 May 2017. Tendered as Defence Exhibit 9 on Plea.

[17] Tendered as Defence Exhibit 8A on Plea.

[18] Report of Martin Jackson dated 11 April 2017. Tendered as Defence Exhibit 8 on Plea.

[19] R v Verdins [2007] VSCA 102, (23 May 2007).

[20] See, eg, R v Fernando (1992) 76 A Crim R 58; Jason Allen Douglas v R BC 9507618, FCA (4 April 1995, 20 June 1995).

[21] Tendered as Defence Exhibit 7 on Plea.

[22] Tendered as Defence Exhibit 6 on Plea.

[23] Tendered as Defence Exhibit 10 on Plea.

[24] [2014] VSC 675 (22 October 2014).

[26] [2014] VSC 194 (6 May 2014).

[28] [2014] VSC 522 (16 October 2014).

[29] [2016] VSC 706 (1 December 2016).

[30] [2014] VSC 146 (4 April 2014).

[31] [2014] VSCA 15 (17 February 2015).

[32] [2009] VSCA 68 (7 April 2009).

[33] Ibid [35]. The sentencing judge characterised the seriousness of the offence as being in the middle category for manslaughter, towards the lower end of that category, [15]. This was overturned by the Court of Appeal.

[34] Ibid [44]. In his reasons, Nettle JA (as he was then) stated, 'For the avoidance of doubt, I add that, were it not for double jeopardy, the sentence and non-parole period would be considerably higher'.

[35] [2007] VSC 132 (24 April 2007).

[36] [2008] VSCA 130 (1 August 2008).

[37] [2012] VSC 53 (24 February 2012).

[38] [2015] VSC 346 (31 July 2015).

[39] Ibid fn 7, Sentencing Advisory Council, Sentencing Snapshots (No 172), May 2015, pp3-5.

[40] [2015] VSC 346 (31 July 2015), [79].

[41] Sentencing Advisory Council, Sentencing Snapshot Manslaughter (No 199), April 2017.