DPP v Robinson [2017] VSC 56

2 You were only 17 at the time of this killing.[1] But Sam Birchall was also a young man. He was only 19 years old when he died.[2] Further, Sam Birchall was the father of 2 children, a daughter and a son. Both of these young children will never know their father.

3 You have also pleaded guilty to a series of thefts and burglaries you committed shortly after the shooting. I will turn to the details of these offences below.[3]

4 In the months leading up to Sam Birchall's death, there had been a history of unrest between you and him. It appears this was brought about because of a sexual encounter you had with his girlfriend at a time when he was incarcerated.

5 In the 2 or so days before 9 May 2015, you continuously drank alcohol and used drugs.[4] On the morning of 9 May 2015, you were in Warrnambool, in the company of 2 others. Together you drove to Geelong. After making a few stops, you suggested that you all go to a house at 19 Dove Street, Norlane. You travelled in the back seat. You had a sawn-off shotgun with you in the car.

6 You arrived at the house in Dove Street shortly after 1 pm on 9 May 2015. Upon the car being parked in the driveway, you got out and entered the house.

7 Unbeknown to you, Sam Birchall was at the house. Earlier that morning, he had had an argument with his girlfriend which resulted in an injury to his right hand. After things had settled down, Sam Birchall and his girlfriend walked to the house in Dove Street. They had arrived around midday and spent most of their time smoking cannabis. Others were also present at the house.

8 You entered the kitchen and an argument quickly started between you and Sam Birchall. You were yelling at each other, and accusing each other of having sex with the girlfriend or ex-girlfriend of the other. You told him to come outside so that you could sort out your issues.

9 You and Sam Birchall walked into the front yard of the Dove Street house. It is not entirely clear who exited the house first. According to the prosecution's summary, Sam Birchall left first and then you followed. However, the depositions include evidence from witnesses who suggested it was you who exited first. Little, if anything, turns on this. Both of you left the house voluntarily and, once in the front yard, continued to argue.

10 While you were arguing, Sam Birchall produced a knife. It is not possible to say precisely what happened next. Your counsel described the events as "a flurry of activity ... indicative of an atmosphere of confrontation". The Crown did not quibble with this description.

11 At the same time, the person who had driven you to the house got out of the car with the sawn-off shotgun. He walked up to the 2 of you and pointed the shotgun in the direction of Sam Birchall. You then grabbed[5] the shotgun and pointed it in the same direction. You continued to argue for a few seconds before you fired the gun from short range.[6] Sam Birchall collapsed on the ground.

12 After shooting Sam Birchall, you ran off and could be heard yelling expletives. One witness saw you carrying something in your hand. At some stage, you disposed of the sawn-off shotgun, which has never been found.

13 You were initially charged with murder. However, the Crown accepted that, having regard to your drug use in the days leading up to the shooting, in the circumstances of this case, [7] it could not prove the requisite intent for murder. On this basis, the Crown accepted your guilty plea to manslaughter.

14 An indictment charging you with manslaughter was filed in court on 21 September 2016. You first offered to plead guilty to manslaughter prior to the proposed contested committal hearing.[8] However, the initial offer you made was on a basis involving a lesser culpability than the basis upon which the Crown ultimately accepted your guilty plea.

15 Over the next 2 or so days, you committed a number of offences. You have pleaded guilty to entering the garage of a private home as a trespasser with an intent to steal and stealing a number of items with a total value of approximately $4,000. You have also pleaded guilty to entering the garage of another private home on the same basis, where you stole a Swiss army knife and a snatch strap.

16 Next, you stole a Volvo station wagon, and drove it across a paddock and through a wire fence. You abandoned that vehicle, after failing to take a corner and hitting a tree. You then stole a Toyota Tarago wagon, which was parked behind the front gates of someone's home. You also damaged the gates. The Toyota Tarago was later discovered abandoned in Corio. You have pleaded guilty to the theft of both of these vehicles.

17 On the night of 11 May 2015, you entered yet another private garage. This time you ransacked the contents of a vehicle's glovebox and console. You also used a pair of bolt cutters in the garage to cut the locks from gun and ammunition cabinets. You took a .22 calibre rifle and assorted ammunition. You have pleaded guilty to entering the garage as a trespasser with an intent to steal, and to stealing the rifle and ammunition.

18 You then went to a nearby property that had a workshed located on it. You entered the shed and stole a Ford station wagon, a small 50cc motorcycle and a large number of other items, including assorted car parts, hand tools, battery charging units, batteries, a global positioning system unit and power tools (namely, a cordless drill, a cordless hammer drill, an impact driver and a circular saw). You have pleaded guilty to entering the property as a trespasser with an intent to steal and to stealing the Ford station wagon, the 50cc motorcycle and the other items referred to.

19 A table is annexed which sets out each offence and the relevant conduct.

20 On the morning of 12 May 2015, you were found asleep in the Ford station wagon, not far from Corio railway station. There was a firearm in the front passenger seat.[9] When police arrested you, you admitted that you had killed someone, though you said that you did not mean to do so. You were largely incoherent and appeared to be under the influence of drugs. You suggested you had been "taking everything" to try to forget what you had done. You have been in custody ever since.

21 Whilst on remand you were detained at Parkville Juvenile Justice Centre ("Parkville"). During that time you spoke on the telephone on numerous occasions. Those calls were recorded.[10] Between 4 August 2015 and 29 September 2015, you made on average 1 or 2 calls per day. During some of these calls you referred to the shooting on 9 May 2015. In doing so, you made various statements concerning the death of Sam Birchall. You also described your condition on the day as being highly under the influence of drugs.

22 You were not always consistent about the circumstances and the surrounding events when discussing the shooting. For example, in some calls you said the following:

(1) If Sam Birchall had not tried to rape your "ex-Mrs ... then [you] wouldn't have done it".

(2) Sam Birchall was "someone that you actually would kill, someone that you would - you would just do anything to watch [him] suffer".

(3) Sam Birchall was lucky that you did not kill him earlier.

(4) You always had the thought in your mind of killing Sam Birchall.

(5) Sam Birchall deserved to die because he was a rapist.

(6) You did not really care about imprisonment and you said "at least I stuck staunch and pulled the trigger ... I only carry guns because I need to use them".

That said, in another call you stated that you regretted killing Sam Birchall. You also made statements to the effect that you wished the events in question did not happen, but when read in their context they appear to be made out of a dismay about the consequences for you, rather than any remorse.

23 Although the extracts set out above were only examples of what you said during the many calls you engaged in, the Crown stated they were a fair representation of the nature of the calls generally. You counsel accepted this position.[11] However, he submitted that such statements, to the extent they suggested a lack of care about what had occurred, were nothing more than bravado and the court should not rely on them. Whilst I accept there may well have been a level of bravado in these and like statements,[12] they still must be taken into account in assessing the extent of your remorse for the terrible crime that you have committed in killing Sam Birchall.

24 You have taken the life of a man who will be sorely missed. The mother of Sam Birchall's son filed a victim impact statement, which demonstrated not only her own distress, but the sorrow that is felt from a young boy losing his father. The like effect on Sam's daughter is demonstrated by a statement from her carer. In addition, Sam's girlfriend at the time of his death has spoken in her statement of feeling lost without him, and the anxiety she now suffers.

25 Sam's father, Matthew Brain, read his victim impact statement in open court. In what was clearly a very emotional experience, he spoke of the many lives that have been destroyed because of Sam's death, and the very serious harm it has caused to him and to his relationship with his partner.

26 Sam's mother, Sharon Birchall, had her victim impact statement read by counsel. That statement noted that, sadly, Sam's life was taken the day before Mother's Day in 2015. She spoke in terms not only of her loss, but the loss suffered by her other son and her grandchildren.

27 All victim impact statements before the court have been carefully read and taken into account.

28 As to your background, to say you have had a less than fortunate upbringing would be an understatement. As a young boy and also in your teenage years, you have had an impoverished existence, were exposed to domestic violence and were introduced to harmful substances. You were the subject of child protection orders from the age of 6 until you turned 18. You spent significant amounts of time in foster care and residential units. You also lived on the streets with your father between the ages of 11 and 13. Your father also has serious substance abuse issues. Indeed, both of your parents suffered substance abuse issues throughout your childhood.

29 From the age of 10, you came into contact with the criminal justice system. That contact has never really abated.[13] This inability to avoid the justice system coincided with you becoming a heavy drinker from the age of 11 and a regular methamphetamine user from the age of 13. Reflective of your lack of parental guidance, you were introduced to methamphetamine by a friend of your father. You were admitted to Geelong Hospital for accidental drug overdoses in August 2014 and April 2015. In 2014, you were diagnosed with post-traumatic stress disorder and depression by a youth psychiatrist, and were prescribed medication.

30 You have not progressed very far with your education. You only reached the level of year 5. Since 2014, you have taken part in some further educational programs. Whilst on remand at Parkville, you have participated in education up to year 11 level. You have expressed a desire to study at year 12 level.

31 You are 1 of 6 siblings, having 2 older brothers, 1 older sister and 2 younger sisters. Whilst you have been in custody you have had some contact with your mother, by telephone when you ring your younger sisters. You have also had telephone contact with 1 of your older brothers and your father. Your father continues to be homeless; and you describe him as being addicted to "ice".

32 A "psychological assessment and court report" was prepared for the purposes of your sentencing. You were described as an immature man, with impairment to your capacity to act with good judgment. It was stated that your safe management in the community presents with a number of challenges related to your criminal history and your "anti-social personality features". It was also noted you will require intensive and structured drug relapse prevention treatment. Finally, the report stated that during the course of your assessment you expressed remorse for your offences; you said you were sorry and that you would change what you had done if you could.

33 As you are under 21 years of age, you are a "young offender".[14] It is accepted that your youth is a mitigating factor, but it is also common ground that, given the degree of criminality involved in the crime of manslaughter, "the sentencing objectives of deterrence, denunciation, just punishment and protection of the community become more prominent in the sentencing calculus".[15]

34 Your counsel correctly acknowledged manslaughter is a very serious crime. The deliberate discharge of a firearm is a serious example of manslaughter. As was stated by the Court of Appeal, an offence of manslaughter committed in such a manner "demands rigorous punishment".[16]

35 The prosecution, whilst acknowledging there are examples of graver offending than the crimes you have committed, submitted your age should "only play a very small part" in the court's considerations. It was also contended your prospects of rehabilitation were not good. This contention was based on your history and criminal record, your unwillingness to engage in drug rehabilitation courses[17] and your alleged lack of remorse.

36 In short, the Crown submitted the only factor in favour of your prospects of rehabilitation was the "raw aspect of youth". In my view, that takes too pessimistic a view of things.

37 You are a young man, with a very difficult past, including an early introduction to alcohol and illicit drugs.[18] You are now confronted with an extended term of imprisonment. You have already demonstrated at Parkville your willingness to participate in educational programs.[19] Although I could not be satisfied you have strong prospects of rehabilitation,[20] there is a real prospect that, notwithstanding your previous drug abuse,[21] you will take advantage of the courses and assistance available given your only alternative is simply to waste your time in prison.[22]

38 In reaching my conclusion on this point, I have taken your youth and background into account. Further, I have placed emphasis on the fact that you accidentally stumbled upon your victim and the killing occurred on the "spur of the moment".[23] Furthermore, I proceed on the basis there are real prospects of your rehabilitation, whilst also factoring in the seriousness of your crimes, particularly the crime of manslaughter. Moreover, given your youth, in order to promote your prospects of rehabilitation, a shorter minimum non-parole period is appropriate.[24]

39 The Crown further submitted specific deterrence was a relevant sentencing factor. No contrary submission was put. In my view, given your age, history and level of remorse, specific deterrence is another factor to be taken into account.[25]

40 The comments above[26] are largely directed towards the offence of manslaughter. As explained above,[27] after the shooting you committed a spate of burglaries and thefts. The extent to which you were drug-affected at the time these crimes were committed is not entirely clear. It is plain you were in a severely drug-affected state when you were found on 12 May 2015.[28]

41 Whatever your state, it was not suggested on your behalf that you should accept anything other than full responsibility for your conduct. Although not nearly as grave as manslaughter, these further crimes represented a serious invasion on the private property of members of our community, including entering residential premises.

42 To the extent applicable, each of the matters referred to above[29] has been taken into account in sentencing you for the burglaries and thefts.

43 Finally, the principle of totality requires that, where multiple offences are involved, the ultimate sentence to be imposed is not the product of a mere arithmetical exercise.[30] Depending on the circumstances, it may be appropriate to make the sentences for each crime wholly or partially concurrent or to lower the individual sentences.[31]

44 Taking each of the matters referred to above into account, and balancing the factors as best as I am able, on each count to which you have pleaded guilty you are convicted and sentenced to be imprisoned as follows:

(2) Burglary - 21 Cullen Court: 9 months imprisonment.

(3) Theft - plumbing tools, global positioning system unit and can of lemonade: 6 months imprisonment.

(4) Burglary - 11 Cullen Court: 9 months imprisonment.

(5) Theft - Swiss army knife and vehicle snatch strap: 3 months imprisonment.

(6) Theft - Volvo station wagon: 6 months imprisonment.

(8) Burglary - 270 Purnell Road: 9 months imprisonment.

(9) Theft - .22 calibre rifle and assorted ammunition: 9 months imprisonment.

(10) Burglary - 40 Lachlan Court: 9 months imprisonment.

(11) Theft - assorted car parts, hand tools, battery charging units, batteries, a Pee Wee 50cc motor cycle, global positioning system unit and power tools: 6 months imprisonment.

(12) Theft - Ford station wagon: 6 months imprisonment.

45 I propose to treat the sentence on the charge of manslaughter as the base sentence. Save where I have specifically directed cumulation below, all other sentences are to be served concurrently. On each of the charges referred to in subparagraphs (2), (3), (4), (5), (6), (7), (8), (10), (11) and (12) above, I direct that 1 month of each term of imprisonment be served cumulatively on the base sentence and upon each other. On the charge referred to in subparagraph (9) above, I direct that 2 months of this term of imprisonment be served cumulatively on the base sentence and the sentences imposed on the charges referred to in subparagraphs (2), (3), (4), (5), (6), (7), (8), (10), (11) and (12) above.[32]

46 That results in a total effective sentence of 10 years. I direct that you serve a minimum term before parole eligibility of 6 years and 6 months.

47 Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that 668 days of pre-sentence detention, including today, have been served and this is to be reckoned as a period of imprisonment already served. I shall cause that declaration to be noted on the court records.

48 By reason of your guilty plea, s 6AAA of the Sentencing Act requires me to state the sentence I would have given you if you had not pleaded guilty. In those circumstances, I would have imposed a sentence of 12 years with a non-parole period of 8 years and 6 months.

Burglary under s 76(1) of the Crimes Act

Entered a garage at 21 Cullen Court with intent to steal

Theft under s 74(1) of the Crimes Act

Stole plumbing tools, a global positioning system unit and a can of lemonade

Burglary under s 76(1) of the Crimes Act

Entered a garage at 11 Cullen Court with intent to steal

Theft under s 74(1) of the Crimes Act

Stole a Swiss Army knife and a vehicle snatch strap

Theft under s 74(1) of the Crimes Act

Theft under s 74(1) of the Crimes Act

Burglary under s 76(1) of the Crimes Act

Entered a garage at 270 Purnell Road with intent to steal

Theft under s 74(1) of the Crimes Act

Stole an Anschutz .22 calibre rifle and assorted ammunition

Burglary under s 76(1) of the Crimes Act

Entered a garage at 40 Lachlan Court with intent to steal

Theft under s 74(1) of the Crimes Act

Stole assorted car parts, hand tools, battery charging units, batteries, a Pee Wee 50cc motorcycle, global positioning system unit and power tools

Theft under s 74(1) of the Crimes Act

[2] Sam Birchall was born on 19 January 1996.

[3] See pars 15 to 19 below.

[4] You have previously suggested you had been involved in substance abuse on an ongoing basis for some 3 weeks.

[5] Although this is the wording used in the prosecution opening to describe the manner in which you took possession of the shotgun, your counsel appeared to take exception to it during the course of his submissions. For completeness, not only is this the description in the prosecution opening, but it is also the language you have used when describing the events in telephone conversations: transcript of Parkville telephone calls, 489, 497, 508, 529 and 556.

[6] There was no direct evidence of the exact distance between you and Sam Birchall at the time the shot was fired.

[7] Cf Hasan v The Queen [2010] VSCA 352; (2010) 31 VR 28, 33 [21] (Maxwell P, Redlich and Harper JJA).

[8] The court was informed that the prosecution was not in a position to resolve the matter until a key witness was examined, which did not occur until 13 September 2016 by reason that the witness in question had absconded.

[9] This was not the firearm used on 9 May 2015.

[10] An automatic recorded message at the start of each telephone call warns Parkville residents that all calls may be monitored.

[11] I have reviewed the transcripts of the calls put before the court (which are incomplete) to verify the extracts relied upon were a fair representation of the statements you have made. In verifying this to the extent possible on the materials available, I note the contents of many of the calls are inconsistent with genuine remorse on your part.

[12] The Crown properly accepted there was a level of bravado given the calls involved persons outside Parkville.

[13] In 2008, you received a 9 month probation order. Since 2012, you have been subject to 6 further probation orders, 5 youth supervision orders and 5 youth justice centre orders, including 2 youth parole orders. In May 2015, you were the subject of a youth supervision order, which was not due to expire until September 2015. The Department of Health and Human Services suggested the majority of your offending has been characterised as dishonesty related, to fund your illicit substance use.

[14] Sentencing Act 1991 (Vic), s 3(1).

[15] Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 57 [44] (Redlich JA, with whom Coghlan and Macaulay AJJA agreed).

[16] Director of Public Prosecutions v Phillips [2009] VSCA 68, [41] (Nettle JA, with whom Maxwell ACJ and Buchanan JA agreed). See also at [35]-[36].

[17] You explained this attitude on the basis that you no longer take drugs.

[18] Cf, for example, R v Koumis [2008] VSCA 84; (2008) 18 VR 434, 438 [56]-[57] (Redlich and Kellam JJA and Osborn AJA), quoting Buchanan and Vincent JJA in R v McKee (2003) A Crim R 88, 92-93 [12]-[13] and 94 [21] respectively; Douglas v The Queen (1995) 56 FCR 465, 470C (von Doussa, Higgins and RD Nicholson JJ).

[19] See par 30 above.

[21] Cf R v Koumis [2008] VSCA 84; (2008) 18 VR 434, 438-439 [56]-[60] (Redlich and Kellam JJA and Osborn AJA).

[22] In making this finding, I have not ignored the fact that your behaviour at Parkville and Malmsbury Youth Justice Centre has been far from exemplary. This behaviour has been given weight, but in the context of the significant institutional problems that have been experienced recently at those locations.

[23] Cf Director of Public Prosecutions v SJK [2002] VSCA 131, [61]-[62] (Phillips CJ, Chernov and Vincent JJA).

[24] See, for example, R v Nguyen [2003] VSC 62, [30] (Warren J).

[25] Cf May-Jordan v The Queen [2017] VSCA 30, [35] (Weinberg and Ferguson JJA), citing Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 55-56 [37]-[40] (Redlich JA); Sianas v The Queen [2016] VSCA 84, [37] (Priest JA, with whom Osborn JA agreed).

[26] At pars 33-39.

[27] At pars 15-19.

[28] See par 20 above.

[29] See pars 33-39.

[30] See, for example, Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62.9-63.5 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).

[32] As you are not being sentenced to "detention" as that term is defined in the Sentencing Act, s 3(1), the presumption of serving sentences concurrently is not applicable: see s 33(1).