DPP v McEwan, Robb and Dambitis

ACCUSED DAMBITIS - Traumatic childhood and adolescence in Latvia - Incarceration in psychiatric institution - As youth incarceration in Siberia - Major depressive illness - Post traumatic stress disorder - Alcohol problem -Prior convictions for violence.

1 Stephen John McEwan, you have been found guilty by the jury, empanelled upon your trial in this Court, of the murder of Scott Shaw on 18 September 2009. James Robb, you have been found guilty by the jury of the manslaughter of Scott Shaw. The jury acquitted you on the count of murder, and on the alternative count of defensive homicide. Normunds Dambitis, you have been found guilty by the jury of the defensive homicide of Scott Shaw. The jury acquitted you on the count of murder.

2 In sentencing you, it is first necessary for me to express my conclusions as to the facts relating to the charges upon which you have each been convicted. In doing so, I shall apply the relevant principles, namely:

(1) That any finding by me must be consistent with the verdicts of the jury;

(2) That I must be satisfied, beyond reasonable doubt, of any facts which might be relied on in aggravation of the offence, for which you have each been convicted;

(3) That I am required to be satisfied, on the balance of probabilities, of any facts which I take into account in mitigation of the offence, for which you have each been convicted, or in mitigation of your sentence.

3 The incident, in which Scott Shaw sustained the injuries from which he later died, took place at 9.45 pm on 12 September 2009. It occurred in Cranbourne North on the eastern side of the South Gippsland Highway, a short distance north of the intersection of Huon Park Road.

4 On that day, Scott Shaw, who was then 24 years of age, had spent the day on a fishing trip with friends in Westernport Bay, first at Stony Point, and then, subsequently, with one friend, Troy Broughton, at Philip Island. During the day, both Broughton and Shaw consumed alcohol, and Shaw also used cannabis. At the trial, the toxicologist estimated that, at the time of his death, Scott Shaw's blood alcohol content was between .14 per centum and .16 per centum.

5 In the early evening, Broughton and Shaw returned from Philip Island in Broughton's Commodore motor vehicle. As they made their way through Cranbourne North, they came upon two 17-year-old youths in Lawless Drive, which is a short distance east of the intersection of Huon Park Road and the South Gippsland Highway. Without any provocation at all, one of them, probably Broughton, alighted from the Commodore motor vehicle, and gratuitously assaulted one of the youths. The two youths then quickly fled.

6 A short time later, Broughton and Scott Shaw happened upon two 15-year-old youths, Jacob Wellington and Chris Stilo, near the intersection of Lawless Drive and Huon Park Road. They accosted Wellington and Stilo, in an intimidatory manner. As a result, Jacob Wellington telephoned his 16-year-old brother, Tipene Wellington, who quickly arrived on his bicycle. By this time, Broughton and Shaw, the two Wellingtons and Stilo were in the service lane on the eastern side of the South Gippsland Highway, a short distance south of the intersection of Huon Park Road and the highway. The evidence as to what then occurred is not entirely clear. However, I am satisfied, on the balance of the evidence, that Scott Shaw, again without any cause or provocation, alighted from the vehicle, with his fists up, and tried to pick a fight with Tipene and Jacob Wellington and Chris Stilo. Broughton joined him. Scott Shaw then tried to punch Tipene Wellington, who successfully fought back. With that, Scott Shaw called out "Get the machete out of the car". At that point, Jacob and Tipene Wellington, and Christopher Stilo, fled towards Lawless Drive. They were pursued in that direction by Shaw, holding a machete.

7 It was at about this stage that you, Stephen McEwan, James Robb and Normunds Dambitis, came upon the scene. Earlier in the evening, you had been attending a 50th birthday party at premises nearby. You left those premises, in McEwan's Chrysler motor vehicle, some time after 9.00 pm. You were then accompanied by two other friends, Rod Gillespie and Michael Burgess. When you left the party, you, McEwan, drove north on the South Gippsland Highway, intending to go to a bar in Berwick.

8 When you reached the intersection of Huon Park Road and the South Gippsland Highway, you noticed the incident, which was then unfolding between Jacob and Tipene Wellington, Christopher Stilo, Scott Shaw and Troy Broughton, in Huon Park Road. As you observed the incident, you could see the two older men seeking to intimidate a group of 14 or 15 year old adolescents. In your evidence at the trial, you, Stephen McEwan, described the two Wellingtons and Christopher Stilo as "children". Judging from their appearances at the trial, two and one half years after the incident, that description of those three young persons was quite accurate. You could also see that one of the older men, who was seeking to intimidate them, namely Scott Shaw, had a weapon in his hand.

9 You thereupon decided to intervene, to protect the younger people, who appeared to be in a position of danger. You turned right into Huon Park Road, and, as you approached them, you noticed that Shaw was holding a machete. Shaw was swinging that weapon at the children, as they ran across the road towards Lawless Drive.

10 Accordingly, you turned left into Lawless Drive, and pulled up alongside Shaw. When you did so, Gillespie called out to Shaw to "leave the kids alone". In response, Shaw came over to your vehicle, and struck the passenger side with two or three firm blows using the machete.

11 As a result, you, Stephen McEwan, alighted from the vehicle. Scott Shaw came around towards you, with the machete raised in the air. At about the same time, you, James Robb, and you, Normunds Dambitis, also alighted from the vehicle.

12 The events, which I have so far related, were, almost entirely, uncontroversial at your trial. What followed, from that point on, was the subject of some contention. There was a dispute as to whether you then chased Shaw from the side of your car towards the service lane. In your evidence, you, Stephen McEwan, said that you only followed him at a distance. However, that evidence was contradicted by two other independent eye-witnesses, whose evidence I accept. I am satisfied that, before you started to pursue Shaw, from next to the Chrysler, Shaw had taken at least one swing at you with his machete. However, it is clear that you then set off in pursuit of Shaw. You, Dambitis, and you, Robb, were following him.

13 Again, what transpired next is not at all clear. However, it is sufficiently clear that the three of you were then moved to a position near Broughton's Commodore, which was parked in the service lane on the eastern side of the South Gippsland Highway, just south of the intersection of Huon Park Road. A number of witnesses described an incident at that point, in which Broughton was assaulted, and the Commodore was damaged. It was not the prosecution case, at your trial, that any of the three of you participated in that attack. That issue was not agitated at your trial. Accordingly, I shall accept, for the purpose of your sentences, that none of you participated in the assault on Broughton, or in causing the damage to his vehicle.

14 In any event, at that point, Broughton attacked you, McEwan, with a fishing rod. You managed to wrestle part of the fishing rod out of his grasp. In your evidence, you, McEwan, said that Shaw then swung the machete at you three or four times. That evidence was not supported by any other witness. When you gave it, it had the hallmarks of exaggeration about it. I am, however, prepared to accept that Shaw either did swing the machete at you, on at least one occasion, or made out as if he was about to do so. Shaw then departed from the area of the service lane, and headed north up the South Gippsland Highway, still holding the machete. It is also undisputed that, after he had done so, you, McEwan, set off after Shaw, and you were followed by you, Robb, and you Dambitis.

15 At your trial, and on your pleas, there was a dispute as to whether you each were involved in an immediate, hot pursuit of Shaw up the South Gippsland Highway, from the service lane, to the point on the highway at which the fatal assault on him took place. However, on a review of the evidence, I am not satisfied that, at that stage, any of the three of you did engage in such a pursuit. Rather, on the balance of probabilities, I am satisfied that you did not. The evidence of eye-witnesses is that, at some stage, Shaw was seen walking north along the centre median strip of the South Gippsland Highway. Those witnesses, in cross-examination, stated that they did not observe that, at that stage, Shaw was being pursued by anyone. Shaw then made his way across the southbound lanes of the South Gippsland Highway. In doing so, while still holding the machete, he, in turn, accosted two separate motor vehicles. Each of them, unsurprisingly, took fright, and, fearing for their safety, fled, speeding off through the red traffic lights facing them.

16 What then transpired was captured by one of the cameras on the Cranbourne North bus, which was then travelling south on the highway towards the intersection of Huon Park Road. Scott Shaw is seen running, albeit not at a fast pace, across the highway, from the middle of it, to the southbound lanes, holding the machete. A little behind him, you, Stephen McEwan, were following him at what might fairly be described as a brisk jog. You were holding a part of the fishing rod, which you had wrestled from Broughton, in your hand. You, James Robb, and you, Normunds Dambitis, were further back at the intersection. As the bus approached Shaw, he brandished his machete at it. The driver started to apply the brakes of the bus. At about the same time, Shaw turned around, and brandished the machete at you, McEwan. However, undeterred, you, McEwan, kept coming at him. You, Dambitis, then made up ground on McEwan. I am satisfied that, at that point, both of you were then in pursuit of Shaw.

17 Scott Shaw initially fled around the front of the bus, followed by you, Stephen McEwan, and you, Normunds Dambitis. He ran down the driver's side of the bus, followed by you, McEwan. At the same time, you, Dambitis, doubled back across the front of the bus, and turned left to go up the passenger side of the bus. You, Dambitis, were holding an object in your hand. I am satisfied, from the forensic evidence, and from the appearance of that object in the video footage, that it was the lump of wood, which became exhibit W in your trial. Earlier eye-witnesses had observed a man, fitting your description, breaking a part of a branch off a tree at the intersection of the South Gippsland Highway and Huon Park Road. After the incident, fragments of wood were located on the highway near where Scott Shaw was assaulted. One fragment was stuck in his nostril.

18 Returning to the incident, you, Normunds Dambitis, turned left to go down the passenger side of the bus. In the meantime, you, James Robb, also approached the passenger side of the bus, although you were a short distance back from it. You were holding a partially consumed can of beer in your hand.

19 You, Stephen McEwan, then continued to pursue Scott Shaw as he fled up the driver's side of the bus, around the back of the bus, and then along the passenger side, towards the front of the bus. I accept, both from the evidence of you, McEwan, and from the video footage, that at that stage you were keeping a little distance from Shaw, who was still holding the machete. However, as Dambitis had doubled back around the front of the bus, Shaw found himself trapped between the two of you. As he got close to the front of the bus, next to the door, Dambitis came around that side of the bus, which was then stationary. The window of the front door of the bus on the passenger side was then broken. It was a point of contention at the trial as to whether you, Dambitis, or whether Shaw, broke it. I am not satisfied, beyond reasonable doubt, that you, Dambitis, caused that damage to the bus. Rather, it is more likely that it was Shaw who did so. Shaw then made his way towards the middle of the bus, no doubt to avoid you, Dambitis. In the meantime, you, McEwan, closed in on Shaw, continuing to approach him from the rear of the bus. You, Robb, threw your beer can in the direction of Shaw, but it ended up in the grass verge at the side of the road.

20 What happened next was the central point of contention at the trial. In short, the prosecution case was that each of the three of you then actively participated in a brutal assault on Scott Shaw, in the course of which he sustained severe head injuries, from which he died six days later.

21 In your evidence, you, Stephen McEwan, stated that Shaw swung the machete at you, that you blocked the blow with your arm and with the fishing rod, that Shaw took another swing at you with the machete, and that you reacted by punching him to the ground with one blow to the chin. You claimed that you then fled, accompanied by Dambitis and Robb.

22 On the other hand, the evidence of three eye-witnesses, called on behalf of the prosecution, was that the persons, who were seen pursuing Shaw to the side of the bus - namely, the three of you - each immediately set upon him at the side of the bus, and perpetrated the assault on him, which left him lying unconscious on the side of the road.

23 It is clear, by its verdicts, that the jury was satisfied, beyond reasonable doubt, that each of you did participate in the assault on Scott Shaw, in which he sustained the injuries from which he died. Consistent with the jury's verdicts, and based on the evidence at your trial, I am therefore satisfied, beyond reasonable doubt, that each of you, at the passenger side of the bus, joined in a brutal attack on Scott Shaw. I am satisfied, beyond reasonable doubt, that Shaw did not strike any blow at you, McEwan, at that point. Rather, having been disarmed by you of his machete, he was then knocked to the ground. There, he was beaten around the body, but principally about the head, on a number of occasions. You, McEwan, beat him with the part of the fishing rod, which you were still holding. You, Dambitis, also beat him with the lump of wood which you were holding. You, Robb, were not holding any weapon at that stage, but you joined in the assault. The eye-witnesses, who observed the assault, described a severe beating with weapons and fists, and which also involved Shaw being kicked while he was on the ground.

24 Having inflicted that beating on Scott Shaw, you each fled the scene, together with Gillespie and Burgess, in McEwan's Chrysler vehicle. You left Shaw, mortally wounded, and bleeding profusely, on the side of the road. A passerby, Dale Caulcutt, had pulled up behind the bus. She observed some young men running away from the side of the bus, and she saw Scott Shaw lying on the side of the highway. Ms Caulcutt immediately went to his assistance. With the aid of the bus driver, Kevin Hillyer, she tried to assist Scott Shaw, moving him onto his side. She comforted him, until the ambulance arrived. It was clear, from the manner in which they gave their evidence in the court, that both Ms Caulcutt and Mr Hillyer were deeply affected by what they experienced. They are each to be commended for their courage, and for their selfless concern for Scott Shaw on that night.

25 Scott Shaw was then conveyed to the Alfred Hospital. He was found to have at least three separate fractures to the skull, including one fracture to the base of the skull. The pattern of his injuries was consistent with at least three applications of blunt force trauma to the left side of his head. As a result, he sustained a substantial right sided brain bleed, with significant pressure, which resulted in overwhelming and irreversible brain damage. As a direct result of the beating, which you each inflicted on Scott Shaw, he died, six days later, in the Alfred Hospital.

26 The prosecution case was that each of the three of you engaged in a joint criminal enterprise to murder Scott Shaw. By its verdict, the jury was satisfied, beyond reasonable doubt, that you, Stephen McEwan, were engaged in a joint criminal enterprise with your co-accuseds to assault Shaw, and that you had the intention of killing him, or causing him really serious injury. The jury was satisfied, beyond reasonable doubt, that you did not believe that such an assault on Shaw was necessary for the purposes of defending yourself, or another person or other persons, from the infliction of death or really serious injury.

27 By its verdict, the jury was satisfied that you, Normunds Dambitis, were also a party to a joint criminal enterprise with your two co-accuseds to assault Shaw, and that you had the intention of killing Shaw, or causing him really serious injury. The jury was not satisfied, beyond reasonable doubt, that you did not believe that such an assault on Shaw was necessary for the purposes of defending yourself, or another person or other persons, from the infliction of death or really serious injury. Accordingly, the jury acquitted you of the charge of murder. By finding you guilty of defensive homicide, the jury was satisfied, beyond reasonable doubt, that you did not have reasonable grounds for a belief that the assault on Shaw was necessary, in order to defend yourself, or another person or other persons, from the infliction of death or really serious injury.

28 At your trial, it was put on your behalf, that the jury could not exclude, beyond reasonable doubt, the possibility that, in following McEwan to the scene of the assault, and (if the jury so found) in joining in that assault, you were doing so with the intention of defending McEwan from Shaw, who was holding a machete. In my view, that analysis may well reflect the verdicts of the jury in your case. Alternatively, the jury may have considered that there was a reasonable possibility that, in assaulting Scott Shaw, you believed you were acting in defence of yourself. When you came upon Shaw beside the front door of the bus, he was holding the machete. Almost instantly, he smashed the door of the bus with it. Based on those facts, the jury may not have been able to exclude, beyond reasonable doubt, that you believed it necessary to assault Shaw to defend yourself from death or really serious injury. I shall therefore sentence you on the basis that, in joining in the assault on Shaw, you believed that the assault was necessary to protect McEwan, or yourself, from death or really serious injury at the hands of Shaw, but that you did not have reasonable grounds for such a belief.

29 James Robb, in your case, the jury was not satisfied, beyond reasonable doubt, that, in participating in the assault on Shaw, you intended that Shaw would suffer death or really serious injury. By convicting you of manslaughter, the jury was satisfied, beyond reasonable doubt, that the assault on Shaw, in which you participated, was an assault which a reasonable person in your position would have realised would have exposed Shaw to an appreciable risk of serious injury. Further, the jury was satisfied, beyond reasonable doubt, that you did not believe, on reasonable grounds, that it was necessary that Shaw be assaulted in such a way for the purpose of defending yourself, or another person or other persons, including McEwan, from Shaw.

30 On your plea, your counsel, Mr Lewis, submitted that the jury's verdict was consistent with a finding that you did not physically participate in the assault on Scott Shaw, but that you were convicted of manslaughter on the basis that you gave your support and encouragement to the assault of him by your two co-offenders. Mr Lewis submitted that that interpretation of the jury's verdict is consistent with one of the ways in which the prosecution had suggested to the jury that it might find you guilty in respect of your involvement in the assault on Scott Shaw.

31 I do not accept that submission. I am satisfied, beyond reasonable doubt, on the evidence, that you did physically participate in the assault on Scott Shaw, albeit that your participation was substantially less, both in its duration and in its severity, than that of your two co-offenders. Two eye-witnesses to the assault (Mr Hillyer and Ms Sawyer) each stated that the persons, who they saw chasing Scott Shaw near the bus, were the same people who they saw setting upon him and assaulting him. Another witness (Ms Lopez) stated that she saw three men surround Scott Shaw near the front of the bus. One of those men - who was clearly yourself - had just thrown what she thought was a bottle in the direction of Scott Shaw. Ms Lopez stated that she saw the same three men catch Scott Shaw and assault him.

32 Further, I consider that that analysis is more consistent with the jury's verdict in relation to you. At all times from the beginning of the trial, the primary proposition put by the prosecution to the jury was that the three of you, including you, James Robb, pursued, set upon, and assaulted Scott Shaw beside the bus. The alternative proposition - that you might be liable because you were nearby, lending your support and encouragement to the assault - was only put to the jury, by the prosecutor, Mr Tinney, as an aside.

33 Based on that analysis of the jury's verdicts, it is necessary for me to determine the level of culpability of each of you, in respect of the offences of which you have each been convicted.

34 At your trial, the prosecution contended that you each pursued Scott Shaw from the side of the Chrysler vehicle, because you were angered by his unwarranted attack with the machete on McEwan's vehicle, in Lawless Drive. The prosecution alleged that you there and then decided to deal with Shaw, and to do so in a particularly violent way. On the other hand, in your evidence, you, Stephen McEwan, stated that at all times, up to the time at which you confronted Shaw at the side of the bus, your concern was for the welfare of young people in the area, who you considered to be at risk from the violent conduct of Shaw and Broughton. As I have already stated, by its verdict, the jury was satisfied, beyond reasonable doubt, that you did not believe that the fatal assault on Scott Shaw at the side of the bus, in which you participated, was necessary to protect yourself, or other people, from death or really serious injury at the hands of Shaw.

35 It is clear, and indeed was accepted by the prosecution, that when the three of you intervened at the outset of the incident, your concern was to protect young people, who you had seen being physically threatened by Scott Shaw. At that stage, as the prosecution, at your trial, accepted, you had every reason to be concerned, if not alarmed, by what you had observed of the conduct of Shaw and Broughton. By your intervention, you distracted Shaw from the violent confrontation, which he was then undertaking with Jacob and Tipene Wellington and Christopher Stilo. Indeed, if the events had not unfolded as they did, there was much about the conduct, of each of you, at the beginning of the incident, which deserves appropriate commendation. By intervening when you saw the young people being threatened by Shaw, you may well have saved them from the serious consequences of the violence that was being threatened to them. Mr Burgess, in his evidence, aptly described your conduct, Stephen McEwan, at that stage, as that of a Good Samaritan, in what he then perceived to be a life and death situation.

36 It is more difficult to assess the motives of you, Stephen McEwan, in then following Shaw, after he had attacked your vehicle with his machete. I am satisfied that part of your motive in doing so was because you were angry with him for damaging your vehicle in that way. However, I am also satisfied that your initial pursuit of Shaw was also motivated by your ongoing concern for the young people who were, or might be, in the area. Shaw was still holding the machete. The threat, which he posed to people in the area, when you first saw him, was, no doubt, reinforced by the gratuitous violence with which he attacked your vehicle. You demonstrated considerable courage in getting out of your car to confront him when he did so. Thus, I am satisfied, on the balance of probabilities, that, at those initial stages of the incident, an important part of your motivation, in pursuing Shaw to the service lane, was because of your ongoing concern as to what Shaw might do to others with his machete, if you did not intervene.

37 As I have already stated, I am also satisfied that, when you got to the service road, you were assaulted by Broughton with his fishing rod. I have no doubt that that assault on you by Broughton would have increased your perception of the type of violence, which Shaw and Broughton were then bent on perpetrating. Equally, I am satisfied that it would have exacerbated your level of excitement and anger.

38 As I have also found, when Scott Shaw departed from the service road, he was not then initially pursued by you as he made his way up the South Gippsland Highway. His conduct, in accosting two vehicles with the machete, would, again, have given rise to a genuine perception that he was an ongoing risk to members of the public. Certainly, the drivers of each of the two vehicles, which he confronted, saw themselves being placed in a dangerous situation, and both drove off through a red light in order to escape from him. Thus, on the evidence, I am satisfied that at least part of the motivation of you, Stephen McEwan, in following Shaw up the South Gippsland Highway was your ongoing concern as to the conduct, or potential conduct, by Shaw to members of the public. That conclusion is supported by evidence on your plea, to which I shall later refer, that, from an early age, you have been inclined to react protectively to the plight of others who, you perceive, may need help. However, I am also satisfied that at the same time, your feelings of excitement and anger had not abated, and that they were part and parcel of the reason why you pursued Shaw up the South Gippsland Highway.

39 On your plea, an issue arose as to when I should find that you formed the relevant intention to kill, or cause serious injury to, Scott Shaw. By the time that you commenced to follow him up the highway, you had in your hand the part of the fishing rod, which you had wrested from Broughton after he had assaulted you with it. I accept that at least part of your purpose in holding the fishing rod, as you advanced up the highway, was to protect yourself, as Scott Shaw was still holding the machete. The fishing rod is quite light, and would not, by any means, be considered to be a weapon of choice by someone bent on inflicting really serious injury, on another. Thus, on balance, I am not satisfied, beyond reasonable doubt that as you first advanced up the South Gippsland Highway, following Scott Shaw, you then intended to kill him, or to cause him really serious injury.

40 On the other hand, it is clear that, by the time of the pursuit of Shaw near the bus, there were no young people in sight. I am also satisfied, beyond reasonable doubt, that you, Stephen McEwan, well knew, at that stage, that he was no longer posing a risk to the young people, who you referred to as "the kids", in your evidence. It is clear, from your actions, and, particularly, from the brutal assault, that was shortly thereafter inflicted on Shaw, that your intent then was to deal with Shaw, and to do so in a violent manner. An eye-witness, who saw Shaw being assaulted near the rear of the bus, stated that, at the time she observed the assault, he was still standing, and he was not holding a weapon. Thus, I am satisfied, beyond reasonable doubt, that when you, Stephen McEwan, had managed to disarm Scott Shaw by the side of the bus, your anger and sense of outrage took over, and you formed the intention to kill Shaw, or to cause him really serious injury. Consistent with the jury's verdict, I am satisfied that, in doing so, you did not believe that such an assault was necessary to protect yourself, or others, from death or really serious injury at the hands of Shaw.

41 As I have already stated, in your case, Normunds Dambitis, the jury could not exclude, as a reasonable hypothesis, that in following McEwan to the scene of the assault, and in joining in the fatal assault on Scott Shaw, you acted in the belief that it was necessary to do so to defend McEwan, or yourself, from Shaw, who was holding the machete. The question of when you formed the intention to kill Scott Shaw, or cause him really serious injury, is somewhat difficult. By the time you advanced up the highway, you had armed yourself with the block of wood, which was capable of inflicting very serious injury if used on another. On the other hand, the jury's verdict, that there was a reasonable possibility that you were acting in defence of McEwan, or yourself, in my view, reflects a finding, consistent with the evidence, that you formed the intention to kill, or cause really serious injury to, Shaw, at the time at which you considered it necessary to act to defend Stephen McEwan or yourself. I am, therefore, not satisfied that you formed that intention, until you were close to the passenger side of the bus, and very shortly before you and your co-offenders perpetrated your assault on Shaw.

42 In your case, James Robb, consistent with the jury's verdicts, you are to be sentenced on the basis that, in following Stephen McEwan and Scott Shaw, first to the service lane, and then up the South Gippsland Highway, you did not have any intention of killing him, or causing him really serious injury. I accept that your actions, in following McEwan and Shaw, in that way, were motivated, at least in part, by a concern to ensure that McEwan did not come to any harm at the hands of Shaw. It is noteworthy that, apart from holding the partially empty can of beer, you did not arm yourself with any other weapon as you approached Scott Shaw. Nor did your actions, in moving up the South Gippsland Highway, bespeak a man intent on inflicting serious violence to Shaw.

43 It is difficult to form any concluded view as to when you, James Robb, decided to participate in the joint criminal enterprise to assault Scott Shaw. However, based on your actions near the side of the bus, I accept that you only decided to do so to at a late stage. By its verdict, the jury was satisfied, beyond reasonable doubt, that you then did not hold a belief, on reasonable grounds, that it was necessary for you to intervene in order to defend McEwan, or anyone else, from Shaw. Equally, however, the jury was not satisfied, beyond reasonable doubt, that you had an intention of joining in, and participating in, the level of violence, which was inflicted on Shaw in the assault which then ensued. That finding is underlined by the evidence of Michael Burgess, that you returned to the Chrysler motor vehicle ahead of McEwan and Dambitis, and that you were not running, or hastening, in doing so.

44 The offences, of which the three of you have each been convicted, are particularly serious. They each involved the unlawful taking by you of the life of another human being. The offence of murder, of which you, Stephen McEwan, have been convicted, is the most serious offence known to our criminal justice system. The maximum sentence for the offence is life imprisonment. The offence of manslaughter, of which you, James Robb, have been convicted, and the offence of defensive homicide, of which you, Normunds Dambitis, have been convicted, each have a maximum sentence of 20 years' imprisonment.

45 In this case, you have each unlawfully taken the life of a 24-year-old young man, Scott Shaw. While, as the prosecution has readily conceded, the conduct of Shaw, on the night of the fatal incident, had much about it which might be criticised, nevertheless that conduct gave you no excuse, or reason, to take his life from him. I have read, and re-read, the victim impact statements of Scott Shaw's family. Scott Shaw was a much loved member of his family, who, despite his faults, had much to give to society, and much to live for.

46 While Scott Shaw was the primary victim of your offending, he has left behind a family who are each properly considered to be victims of your criminal actions. You have taken a much beloved son from his mother and his father, and a dearly loved sibling from his twin sister and from his brothers. The victim impact statements speak eloquently of the unbearable grief, trauma and loss, which they have each suffered as a result of your criminal conduct. The statements of those members of Scott Shaw's family are an important reminder of the seriousness of your wrongdoing, and of the long standing anguish occasioned by you to the family of Scott Shaw.

47 I turn, then, to matters relating to the background and personal circumstances of each of you. You, Stephen McEwan, were born in April 1972, and you are 40 years of age. You have a younger sister and a younger brother. Your background and history has been set out in a detailed and moving testimonial prepared by your sister, which was tendered to me.

48 In your early years, you lived a normal, happy and comfortable family life. However, when you were approximately 9 years of age, matters changed dramatically. Your father started going out late at night. When he came home, there were regular arguments between your mother and your father, and on a large number of occasions your father became physically violent to, and abusive of, your mother. As the eldest child, you intervened to protect your younger brother and sister from being exposed to the beatings, which your father inflicted on your mother. You also sought to intervene to protect your mother. From an early stage, you have assumed the role of the protector of your siblings and your mother, and subsequently all of your family members, a role which has persisted up to the present time.

49 Ultimately, your father left your mother when you were approximately 13 years of age. He died from an insulin overdose when you were 21 years of age. It is clear that you have had difficulty coming to terms with your father's deficiencies as a parent and as a husband, and also with the circumstances in which he died.

50 After your father left your mother, he did not provide any financial support to his family. So, at the early age of 14 years, you left school, to commence full time work in the demolition industry. You worked for two years with your uncle, and then, from the age of 16 years to the age of 30 years, you worked for another employer, Richard Eagles, in the same industry. During that time, you provided consistent financial and emotional support to your mother and to your two siblings. From your early adolescence, you were a selfless and giving son and brother to them.

51 When you were 30 years of age, you started your own business. For the last decade, you have dedicated yourself to your demolition business, and you have been intent on building it up, so that you have something of value to pass over to your children. Over that time, you have introduced your children to the work performed by your business, and you have commenced to educate them in it. Your sister states how you have earned the loyalty of your employees, and, in turn, you have put their entitlements ahead of your own material interests.

52 You have been involved in relationships with four different women, and you have five children by three of them. Notwithstanding your separation from their respective mothers, you have always sought to provide financial and other support to all of your children.

53 You met your first partner when you were very young. You have a daughter, now aged 18 years, by her. Although you have had little personal contact with that daughter, you have always paid child support for her, and you have given financial assistance to her. Your next relationship lasted six years. You have two sons by that relationship. You have consistently provided financial support to them, and you have played an active role in their lives. You met your third partner when you were 27 years of age, and you have twin sons by her. Although you have separated from that partner, you have maintained an amicable relationship with her, and you see your twin sons three or four times each week, as well as every second weekend.

54 You met your current partner, Nicole, some five years ago. She has three sons by a previous relationship. You are engaged to be married to her. You have become actively involved with, and supportive of, her three sons, with whom you have a close relationship.

55 In addition, you have been a pillar of support to your mother, Cheryl. Your mother now suffers from serious ill health, which is deteriorating. You made a significant contribution to the purchase of a home for her four years ago, in order to provide security to her. Since the departure of your father, you have continued to perform the role of protector of, and support to, your mother. At the same time, you have also provided great support to your sister, to your brother, and to your elderly uncle.

56 The testimonial of your sister, Lisa Marie, amply describes you as a man who is exceptionally kind hearted and generous. You do have two previous convictions, but they were quite some time ago. In 1994, you were convicted at the Magistrates' Court of intentionally or recklessly causing injury, and assault in company. That court appearance was your only conviction for any crime of violence. In 1997, you were convicted, at the Magistrates' Court, for using a drug of dependence and possessing a restricted substance. That conviction is of little moment in the context of the present case. Thus, apart from a blemish when you were 22 years of age, there is nothing in your record which indicates that you are a man of violence, or that you have any anti-social characteristics. To the contrary, apart from that matter, your history, which I have just summarised, reveals you to be a person of commendable character traits, and of unswerving and selfless loyalty to your family members.

57 On your plea, I also received, as exhibits, a large number of testimonials from family members, friends, and work associates. In addition, a long standing friend, Vanessa Homan, gave evidence. That evidence, and the testimonials, all describe you as a person whose primary motivation has been to support and protect your family. You have a great affinity with younger people, and particularly with those who are in difficulty. The testimonials, and Ms Homan's evidence, describe you as being trustworthy, honest, loyal and generous. Your work colleagues also confirm that you are a hard worker who is well respected. In particular, you have put the welfare of your staff before yourself, and as such you have earned the loyalty of your employees. Most importantly, a number of the testimonials, and Ms Homan in her evidence, each state that you are not a violent person, and that the offence, for which you have been convicted, is entirely out of character for you.

58 On your plea, Mr Cash, who appeared for you, tendered a report by Ms Pamela Matthews, a forensic psychologist. Ms Matthews also gave evidence before me. She saw you last month at the Melbourne Remand Centre, and she also had the benefit of a long interview with your sister three days previously. In the conclusion to her report, Ms Matthews expressed the view that your response, on the evening of 12 September 2009, arose from deeply embedded patterns of behaviour, which you formed when you were a child, seeking to protect your mother and younger siblings from your father's violence towards your mother. Ms Matthews further stated that she considered that your mental state, arising out of your father's violence to your mother, and your role in your childhood family, played a large part in how you perceived the events, and your role in those events, on 12 September.

59 In her evidence before me, Ms Matthews elaborated on that conclusion. At one stage in her evidence, she suggested that your behaviour on that night was automatic, and that it involved a degree of disassociation by you from the realities of what was occurring. I do not accept that aspect of Ms Matthews' evidence. It does not fit with the description which you yourself gave of the events which occurred up to and culminating in the assault on Scott Shaw beside the bus. Nor does it fit with the evidence in the case.

60 I do accept Ms Matthews' proposition that your background, and, in particular, the protective role which you have consistently played for so long in your family, played a material part in your response, when you saw Scott Shaw threatening the young people at the corner of Huon Park Road and Lawless Drive. I also accept that your background may, to some extent, have clouded your judgment as to the threat which continued to be posed by Shaw, when you followed and pursued him up the South Gippsland Highway. Certainly, there was enough about the behaviour of Shaw, at that stage, to have given rise, objectively, to a realistic perception that he was continuing to pose a threat to the safety of members of the public. However, I do not accept that your background played any relevant role in the final assault on Scott Shaw, which took place beside the bus.

61 As I stated, consistent with the jury's verdict, I am satisfied on the evidence that Scott Shaw had been disarmed while he was still standing by the bus. By that time, there was no further need to protect the public, or anyone, from him. Indeed, in evidence at your trial, you did not suggest that, after you first punched Scott Shaw on the chin, he posed any further danger to you, or to any other person. Nor, on any sensible view, could he have been a danger to anyone. By then, he had been disarmed, and he was surrounded, not only by yourself, but also by your two friends. The disproportionate violence, which was then inflicted on him, went well beyond protecting anyone, real or imagined, from Shaw. Rather, it was, I am satisfied, the product of the outrage, anger and excitement provoked in you by Shaw's previous behaviour.

62 In summary, then, you have been found guilty of the most serious criminal offence known to our law. Your murder of Scott Shaw was carried out in a violent and brutal manner. It is an aggravating feature of the offence that you, and your co-offenders, continued to assault Shaw, while he was defenceless on the ground.

63 On the other hand, there are weighty mitigating circumstances in your favour. First, there are important mitigating circumstances attaching to your offending. As I have already stated, I accept that you initially intervened, when you saw Scott Shaw menacing other young men, out of your selfless concern for the other young people. In doing so, you acted with great courage. As I have already observed, it is quite possible that, as a result of your intervention, you may well have saved those young persons from the serious consequences of violence at the hands of Scott Shaw and his friend, Broughton. Secondly, while I do consider that you were angered when Shaw attacked your vehicle, I have accepted that you continued to be motivated also by your genuine concern for other people's safety, as you followed and pursued Shaw, first to the service road, and then up the South Gippsland Highway. As I have stated, I am satisfied that you only formed the intention to kill Shaw, or cause him really serious injury, moments before the fatal assault on him next to the bus.

64 There are also a number of mitigating circumstances, deriving from your background, which I have summarised. Apart from one blemish, some 18 years ago, you have no relevant previous convictions. You have been an extraordinary loyal and supportive member of your family, and particularly to your mother, to your siblings, to your ex-partners, and to your children. Throughout your life you have displayed exceptional generosity and selflessness. You are an industrious person. You have established and built your own business. From the proceeds of that business, you have dealt honourably with your employees, and you have provided important financial support to a number of members of your family. Before this offence, you could fairly be described as a person of admirable qualities. I accept that your offending in this case was entirely out of character.

65 I also accept that the sentence of imprisonment, which I must impose upon you, will be particularly harsh for you. Your whole life has been centred around supporting your family members. It will be very difficult for you to adjust to not being able to do so, particularly as there are so many people who have become dependent upon you over the years. In particular, your mother's health is deteriorating. A term of imprisonment will be especially difficult for you to bear in those circumstances, as you have been her main means of support since your childhood. Finally, notwithstanding the valiant attempts of your sister and your brother, it will be difficult for your business to survive during your absence. I accept that, by the time you are released from prison, it will be difficult for you to re-establish yourself with your family and in your business. All of those matters are legitimate mitigating circumstances of some weight, which I take into account in determining your sentence.

66 On your plea, I was informed, and received evidence, that a period of incarceration for you will involve considerable hardship for a number of people, who have become dependent upon you over the years. In particular, it is clear that, during your sentence of imprisonment, your mother, and your younger children, will suffer considerably. As a matter of sentencing principle, I am only permitted to take such a consideration into account, in mitigation of your sentence, if I am satisfied that those circumstances can properly be considered to be exceptional. Having reviewed the evidence in this case, I am not satisfied that the hardship, to your family members resulting from your imprisonment, could be properly characterised as exceptional. Nevertheless, as I have already stated, I do take into account that a sentence of imprisonment will be particularly harsh for you, because you will be acutely conscious of the fact that that sentence will involve significant hardship to others, and, in particular, to your mother.

67 You, James Robb, were born in December 1958, and you are now 53 years of age. You have four siblings, to whom you have remained close. Your father was a building contractor. Having completed your education at Doveton North Technical School at the age of 15 years, you commenced to work with your father. Although you did not undergo any formal apprenticeship, you acquired a number of trade skills by working on various building jobs.

68 You worked with your father for a period of twenty years. When he sold his business, you were employed by General Motors Holden for two years, and then you worked with your father in Queensland for another year. Since that time, you have been engaged as a contractor in the building industry on a casual basis, working as a concreter, builder, labourer and painter. I have read a number of testimonials, which were tendered on your plea, from persons who are involved in the building industry. They all describe you as a trustworthy, honest and self-motivated person, who relates well to other persons connected with the building industry, including customers, tradesmen and fellow employees.

69 You married your former wife, Jenny, in 1990. You have a daughter by that marriage. A number of years ago, you separated from your wife, but you have maintained an amicable relationship with her. Your ex-wife's testimonial describes you as being very kind hearted, giving and loyal. At one stage, you looked after your ex-wife's terminally ill brother, and you tended to him as he suffered from the distressing side effects of his weekly chemotherapy sessions.

70 Subsequently, you entered into another long term relationship, by which you have a son, who is aged 20, and who now resides in Cairns. More recently, you have become engaged to Beverley Anderson, and the two of you intend to marry after you have completed your term of imprisonment.

71 As a young man, you played football with the Berwick Football Club, and you have remained a long time supporter of that club. As such, you have often provided voluntary assistance and work to the club. You have, throughout your life, gained a number of friends, who speak very highly of you. At your plea, I received twenty testimonials from your friends, and seven testimonials from family members. They all describe you as a most helpful and generous person, who is loyal to his friends, family and others. The testimonials also speak eloquently of your trustworthiness and honesty. It is particularly noteworthy that a number of them describe you as a man who is not violent, and they express the view that your offending in this case is entirely out of character.

72 In addition, your sister, Cheryl McGill, and your lifelong friend, David Rigaldi, gave evidence on your plea. They both attested to the same qualities of honesty, generosity and selflessness. Their evidence reinforced the views, expressed in the testimonials, that you are not, by nature, a violent or aggressive person.

73 You have had a long standing problem involving the excessive consumption of alcohol. On a number of occasions, you have attended Alcoholics Anonymous, the last occasion being just twelve months before this offence. Each time, you have successfully completed the course. However, you have been inclined to readily succumb to the pressures of life, and you have resorted to alcohol as a means of alleviating your feelings of stress. Nevertheless, it is noteworthy that when you over-indulge in the use of alcohol, you do not resort to violence. Mr Rigaldi described how, in such a condition, you may become verbally argumentative, but you do not, in any way, become physically aggressive.

74 You have come before the courts on four previous occasions between 1982 and 2006. On three of those appearances, you were convicted of driving a motor vehicle whilst exceeding the prescribed concentration of alcohol. The other appearance - at Dandenong Magistrates' Court in 1998 - involved charges of breaching an intervention order and being drunk in a public place. It is obvious, but noteworthy, that each of your previous convictions have involved the excessive consumption of alcohol.

75 On your plea, I received a report from Mr Patrick Newton, forensic psychologist, who examined you on 22 August last. Mr Newton concluded that, while you do not meet any diagnostic criteria for a mental disorder or condition, nevertheless you do have a long standing severe drinking problem. He stated that you have only a limited insight into your drinking problem. Mr Newton considers that you are at a relatively high risk of relapse to problematic drinking after you are released into the community, unless you receive appropriate counselling and treatment for your problem. Mr Newton is of the view that your problem is sufficiently severe to meet the diagnostic criteria for "alcohol dependence". In his helpful report, he has recommended that you undergo alcohol related education and counselling, and that you receive anger management training. In respect to that latter matter, Mr Newton is of the view that you lack sufficient skills to manage conflict, and to defuse situations which could otherwise get out of hand.

76 In the present case, you had been drinking some alcohol before your involvement in the incident in which Scott Shaw was killed. There is no evidence that you were intoxicated, and, indeed, the evidence of Ms Katie Burgess suggests to the contrary. I do note, nevertheless, that, as you followed Shaw up the South Gippsland Highway, you were still holding a beer can. There is no evidence on which I could find that your judgment on the evening was affected by your consumption of alcohol. Only you can know if that was the fact. In any event, it is important that you do address the problems which have been identified by Mr Newton in his report, and that while you are in custody you receive the treatment recommended by Mr Newton.

77 Since your conviction, you have continued to maintain your innocence of the charge for which you have been convicted. Nevertheless, your sister, Cheryl McGill, and Mr Rigaldi, each told me that they had spoken to you about the events of the night in question. You have told them that you wish you had never got out of the car. You have expressed sincere empathy with the anguish felt by Scott Shaw's family, and I accept that you are deeply sorry that, as a result of the incident, Scott Shaw lost his life. Notwithstanding your assertion of your innocence, you have stated to your sister your clear understanding that you should have disengaged yourself from what was going on at the outset.

78 In summary, then, you have been convicted of a particularly serious crime. However, in mitigation, I accept, consistently with the jury's verdict, and with the evidence, that you were substantially less involved in the infliction of violence on Scott Shaw than your two co-offenders, Mr McEwan and Mr Dambitis. It is also clear from the evidence of Mr Burgess that you disengaged yourself from the assault some time before Dambitis and McEwan desisted from their attack on Scott Shaw.

79 On your plea, your counsel, Mr A Lewis, submitted that your offending should be characterised as falling well below the mid-range of manslaughter offences. It is, of course, well recognised that the degree of seriousness of the conduct, required to constitute the offence of manslaughter, can vary quite markedly. Certainly, I accept that the gravity of your offending in this case was considerably less than the most serious instances of manslaughter, which come before this Court. Nevertheless, I consider that Mr Lewis' characterisation of your offending understates its seriousness. The assault, in which you participated, was perpetrated, with brutality, on a defenceless young man. Your two co-offenders carried it out with weapons. On balance, I consider that your offending may be fairly characterised as being at the lower end of the mid-range of such offending.

80 I accept the evidence of your sister and Mr Rigaldi that you are deeply remorseful about what has happened to Mr Shaw, and, in particular, that you have genuine sympathy for his family. It is clear on the evidence that your offending in this case was entirely out of character for you. I am well satisfied that you are not, by nature, a violent man, and, indeed, notwithstanding your alcohol problem, you do not have aggressive tendencies. The character evidence, given by your friends, family and work colleagues, satisfies me that you have a number of positive character traits. I am, thus, satisfied that you will have good prospects of rehabilitation on the completion of your term of imprisonment. That said, I emphasise that it is important that you take appropriate steps to address your alcohol problem, while you are serving your term of imprisonment.

81 You, Normunds Dambitis, were born in Latvia in September 1969. Your childhood, and adolescence, in Latvia, were marked by a number of traumatic experiences, in which it would appear that you suffered directly from oppressive conduct by the former Soviet regime. As a result of those experiences, you have developed serious psychological problems, which require significant long term attention.

82 When you were 6 years of age, your parents separated, and you have not seen your father since. After their separation, you lived with your mother and your maternal grandparents. One day, when you were aged 8, the Latvian police forcefully removed you from your mother and your grandparents. They told your mother that you were being taken away because you were a slow learner. You were taken to a large psychiatric hospital 140 kilometres away, where you were held for a period of seven months. During that time, your mother was only permitted to make one visit to you. She, and her parents, were not allowed to speak to you on the telephone during that time. When your mother visited you, you were very distraught. You had been receiving injections and medication which reduced your levels of energy and drive.

83 Finally, you were released home to your mother. Unsurprisingly, on your release, you were depressed and withdrawn. You were not permitted by the authorities to return to school, but, rather, a teacher came to your home to educate you. During that time, you did not have any social or educational contact with children of your own age. After a period of six years, you were finally permitted to go to school and finish high school. By that time, you had no friends or associates of your own age. You had drifted into the company of older youths who lived in your suburb. They introduced you to alcohol at a young age, and by the time you were 16 years of age you had developed an alcohol habit, which has remained with you throughout your life.

84 When you were 17 years of age, you were convicted by the Ventspils District Court in Latvia of a charge of hooliganism. There is conflicting evidence as to the nature of the alleged offence, in respect of which that conviction and sentence was imposed. Your mother's evidence, which I accept, was that you had been involved in a protest in favour of a former Prime Minister of Latvia. You were not permitted to have legal representation at your trial, and the court, by which you were convicted, was described as a "People's Court". You were sentenced to 18 months' imprisonment, but it would seem that that term of imprisonment was, in effect, suspended.

85 In March 1991, you were convicted by the Tukuma District Court on another charge of hooliganism. On that occasion, you and your friends had become involved in an altercation with some Russian youths. Again, at your trial, you were not permitted to have legal representation. On this occasion, you were sentenced to 4 years' imprisonment. The last fourteen months of that imprisonment was served by you in a labour camp in Siberia, where the conditions were extremely harsh. During that time, your mother was only permitted to make one visit to you, and she was not permitted to have any telephone contact with you.

86 In the meantime, your mother had come to Australia in the late 1980s. She remarried in Australia, but subsequently divorced. After a few years, she returned to Latvia to visit members of her family. After your release from prison in 1994, you returned to Australia with her.

87 After spending a short time in Wollongong, you came to live with your mother in Victoria. You first worked in a flower farm in the Dandenongs for a period of approximately two years, and then you worked for approximately four years in a Latvian retirement village at Wantirna. You then moved to Phillip Island, where you became a commercial fisherman for approximately four years.

88 At one stage you entered into a relationship with a young woman called Emma. When that relationship ended, you became extremely depressed, and you took to consuming excessive quantities of alcohol. On the evening of 6 January 2007, after consuming a bottle of vodka, you attempted to commit suicide by carbon monoxide poisoning. You were found in a semi-conscious state in a vehicle in the garage of your premises. When others sought to intervene to assist you, you became both verbally and physically abusive to them. As a result of your conduct, you were charged and convicted of four offences arising out of that incident. In particular, you were charged with recklessly causing injury to a female who attempted to assist you, with the assault of a member of the Emergency Response Unit who attended the scene, and with intentionally damaging property. Shortly after the police arrived, you took hold of a bow and arrow, pointed it at them, and advanced to a distance of approximately 20 metres from them. For that conduct, you were charged with recklessly endangering the lives of the police members. Fearing for their lives, the police discharged their firearms at you. You were struck by four bullets, twice in the abdomen, once to the elbow, and once to the leg. You were in hospital for a period of two weeks with serious injuries.

89 On your release on bail from hospital, you were deeply upset and depressed. You drove into the bushland, and again tried to take your life. You pleaded guilty to the charges arising out of your conduct on 6 January 2007. On 20 June 2008, a judge of the County Court imposed an effective sentence of 18 months' imprisonment in respect of the four charges to which you pleaded guilty, and his Honour directed that you serve a minimum of 12 months' imprisonment before becoming eligible for parole.

90 You were released on parole in late December 2008. Shortly after your release, you again attempted to commit suicide. That led to the cancellation of your parole, and you returned to custody on 4 March 2009. You were again released on parole one month later, but, once again, you attempted to take your own life. As a result, your parole was again cancelled, and you returned to custody on 24 April 2009. You then completed your full term of imprisonment, and you were released on 10 September 2009, just two days before your offending in this case.

91 On your plea, Mr Timothy Watson-Munro, a consultant forensic psychologist, gave evidence, and a report prepared by him was tendered. Mr Watson-Munro saw you on 27 July and 13 August.

92 Mr Watson-Munro took a detailed history from you, and conducted tests, which confirmed that you have a severe and ongoing major depressive condition. He considered that that depression has been long standing, and that it was associated with alcohol dependence. In addition, he also concluded that you have an established post traumatic stress disorder arising from your hospitalisation as a child, your persecution in Latvia, and, more recently, the incident in which you were shot by the police. In evidence before me, Mr Watson-Munro expressed the view that your psychiatric conditions have had some bearing on your judgment and on your behaviour over the years. In cross-examination, he stated that, while it is possible that your psychiatric conditions could have affected your judgment on this occasion, it is a matter of conjecture as to whether in fact your psychiatric condition played any part in your participation in those events. Mr Watson-Munro's principal concern was that a term of imprisonment might aggravate your psychiatric condition, and he expressed the view that, as a result of your psychiatric problems, a term of imprisonment would be more difficult for you to bear.

93 Mr Watson-Munro also expressed the view that it is most important that during your incarceration you receive concentrated treatment, in order to assist with your eventual rehabilitation into society. He considered that, because of the severe and long standing nature of your psychiatric problems, it is important that you have a treatment management plan in jail, which would cater for ongoing psychotherapy over a period of years.

94 You have a number of previous convictions, including convictions for violence. As I indicated on your plea, I do not take into account the two convictions, which you have in Latvia. Their only relevance is that they formed part of the traumatic circumstances in which you lived your younger years before you migrated to Australia. I also accept the submission by Mr Toal that the matters, for which you were sentenced by Judge Parsons of the County Court in June 2008, involved irrational behaviour, in which you were in an emotionally disturbed state. I also accept his submission that your conduct, in pointing the bow and arrow at police officers, was likely to have been an attempt at self-destruction by you. Nevertheless, your conduct on that occasion was serious.

95 Apart from that incident, you have come before the courts on four other occasions. Of particular concern is that in 1997, and again in 1999, you were convicted on charges of assaulting police in the lawful execution of their duty, and assault by kicking. In April 2005, you were convicted by the Korumburra Magistrates' Court of one charge of intentionally causing injury. For that offence, you were sentenced to 4 months' imprisonment, which was wholly suspended for a period of twelve months. In January 2007, you were convicted and fined by the Melbourne Magistrates' Court on a charge of behaving offensively in public and failing to supply your name and address. The combined effect of those offences, and particularly the charges involving assault, is that you have a history of breaking the law in a violent manner. Mr Toal informed me, and I accept, that the excessive consumption of alcohol by you played a significant role in each of your previous offences.

96 It is of even greater concern that your offending in this case occurred just two days after your release from prison. The fact that you re-offended, so soon after serving your term of imprisonment, is a circumstance which must be taken into account in your sentence. I accept that you do have significant long standing psychological and psychiatric disorders, for which you need treatment. I also accept that it would appear that you have had little effective treatment for those conditions so far. As I stated, however, Mr Watson-Munro was unable to express the view that your psychiatric conditions played a relevant role in your participation in the events of 12 September 2009. I accept, in a broader sense, that the traumatic circumstances of your youth shaped your personality, and contributed to you exercising poor judgment in the type of circumstances which arose on 12 September. To that limited extent, I accept that your psychiatric conditions, and your deprived earlier years, play a role, albeit limited, in mitigating the gravity of your offending in this case.

97 In determining your sentence, I also take into account a number of character references, which were tendered on your plea. Those references reveal that you are conscientious about your work, and that, as an employee, you are a reliable and responsible member of the work force. The references also describe other positive character traits, including your loyalty and support to your mother, who in recent years has suffered ill health.

98 In summary, then, you have been convicted of a very serious offence. Consistent with the jury's verdict, I am to sentence you on the basis that you believed that it was necessary for you to participate in the assault on Scott Shaw, in order to defend Stephen McEwan, or yourself, from death or really serious injury at the hands of Shaw, but that you did not have reasonable grounds for forming that belief. Indeed, on the evidence, I am satisfied that your belief, that it was necessary to defend McEwan, or yourself, in that way, was wholly unreasonable. Your offending is all the more serious because of your previous convictions in Victoria, and particularly because you had only been released, two days previously, after serving a term of imprisonment for crimes of violence.

99 On the other hand, as I have outlined, there are mitigating circumstances in your case. In particular, as a result of your extraordinary experiences during your childhood and your youth, you have suffered a long standing and major depressive condition, and you also have sustained a post traumatic stress disorder. I accept that, as a result of those conditions, you will find a lengthy term of imprisonment particularly onerous. I also accept the evidence of Mr Watson-Munro that it is likely that such a term of imprisonment will aggravate your psychiatric conditions. As I have already stated, I accept that, to a limited degree, those conditions, and your traumatic younger years, affected your ability to exercise appropriate judgment in the circumstances which confronted you on 12 September 2009, and thus, to a limited extent, those matters mitigate the seriousness of your offending. I also accept that you do have positive qualities, and, in particular, that you are a conscientious employee, who is capable of being a productive member of society.

100 In determining the sentence in the case of each of you, the principle of general deterrence is significant. It is important that the sentence, which I impose on each of you, be of sufficient severity to make it clear that persons, who contemplate indulging in the type of violent conduct, in which you were each involved, should expect to lose their right to live within society for a substantial period of time. In the case of you, Stephen McEwan, and you, James Robb, I do not consider that the principles of specific deterrence are particularly significant. I am satisfied that your offending in this case was entirely out of character for both of you, and I am also satisfied that the circumstances, which have brought you before this Court, and any term of imprisonment, will be sufficient to deter you from re-offending. The principle of specific deterrence is of more relevance to you, Normunds Dambitis, particularly since you re-offended so soon after your release into society after your last offending. Nevertheless, I consider that the prospect of you re-offending will only be adequately diminished, if you receive, during your term of imprisonment, appropriate long term psychiatric treatment, of the type described by Mr Watson-Munro. Finally, in the case of each of you, it is important that the sentence be such as to constitute the condemnation by the Court, and the community, of your offending, and to uphold the sanctity of human life.

101 Taking those matters into account, and bearing in mind the mitigating circumstances to which I have referred, I sentence you each as follows.

102 I sentence you, Stephen McEwan, to 16 years' and 6 months imprisonment. I fix a minimum non-parole period of 12 years and 6 months. Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that 149 days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.

103 I sentence you, James Robb, to 8 years' imprisonment. I fix a minimum non-parole period of 5 years and 6 months. Pursuant to s 18(4) of the Sentencing Act, I declare that 143 days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.

104 I sentence you, Normunds Dambitis, to 11 years' imprisonment. I fix a minimum non-parole period 8 years. Pursuant to s 18(4) of the Sentencing Act, I declare that 477 days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.