DPP v Townsend [2015] VSC 456

3 Approximately two years before the offence, you became acquainted with some of the occupants of the property, while you were then living in the Traralgon and Lakes Entrance area. As a result, you commenced to live in a caravan on the property. In due course, you became friendly with Gina Wilkinson, and, about three months before the offence, you formed a relationship with her and moved into her house to live with her. You were then on a disability pension, having previously worked as a truck driver.

4 On the day on which the offence took place, a group of friends and acquaintances of Gina Wilkinson attended at the property to celebrate the 40th birthday of Gina's daughter. A number of them commenced drinking alcohol from the early hours of the morning. At approximately 10.30am, Gina drove you, and some other residents, to Lakes Entrance to purchase some supplies. You subsequently returned with Gina to the Rules Road property sometime after 2pm.

5 Upon your return to the property, you, and other persons at the party, were drinking alcohol and listening to music in the rear yard of the property. During the afternoon, the deceased, Ronald Wilson, arrived, and he joined the group there. He was drinking quite heavily, and was well affected by alcohol by the late afternoon. At one stage, under the influence of alcohol, he approached Gina Wilkinson and propositioned her.

6 Apparently, you and Ronald Wilson had previously got on quite well together, and you were on quite friendly terms with each other. However, you tended to be protective of your relationship with Gina Wilkinson. Gina treated Wilson like a nephew, and as a result you were prone to become very jealous when Wilson was with her.

7 At about 6.00pm, you went inside the house to have a sleep. You had been drinking heavily, and you told the police that you had not slept well for the last couple of days. Sometime later, while you were lying down, you heard Ronald Wilson's voice. As a result you got out of bed. You were met at the bedroom door by Gina Wilkinson. Wilson was nearby in the hall. You pushed past Gina with your hand, and then pushed Wilson in the left shoulder, causing him to fall back towards the wall of the hallway. Gina managed to grab Wilson, and prevented his head from connecting with the wall. Wilson raised his fist and yelled out at you, "I am going to hit you, you big cunt". Gina directed Wilson to go outside. In the meantime, she pushed you back into the bedroom, causing you to land on the bed.

8 Gina then told you to calm down, and she reassured you that she only cared for you. She asked you to go outside to apologise to Ronald Wilson. As a result, you went into the back yard, apologised to Wilson, and shook hands with him. You then returned to the bedroom.

9 Subsequently, at approximately 7.00pm, Gina Wilkinson, having finished cleaning the dishes in the dining room, went outside to the back yard. She sat in a group of friends, one of whom was Ronald Wilson. They were talking together, but Gina could not understand what Wilson was saying, because he was too intoxicated. Wilson was being very affectionate towards Gina, which, apparently, he was apt to do.

10 At that stage, you came through the back door of the house to the rear yard. When you saw Wilson talking to Gina, you approached them. You warned Wilson to stay away from Gina, and you said that you would hit him if he did not stay away from her.

11 About 20 minutes later, and after further warnings, you again approached Wilson, who was then sitting in a chair. You swore at him, and called him a "dog." You then punched him on the nose with a clenched fist. Wilson was stunned, and said, "What the fuck are you doing". Some of those present called out to you to leave Wilson alone. Wilson then stood up from his chair and walked towards you. As he did so, you pushed him to the chest.

12 Ronald Wilson was then standing on the concrete veranda facing the house, on the edge of the concrete and the grass. He said to you, "What's going on". You did not reply. You walked in front of him, and punched him with your right fist to his left temple. As a result of the force of the punch, Wilson fell backwards and landed heavily on his back close to a fire hydrant on the grass. After Wilson fell, he was motionless. Then he started to convulse. An ambulance was called. In the meantime, Gina Wilkinson and other onlookers went to his aid and administered first aid.

13 After approximately 60 minutes, a single person MICA paramedic attended the scene with the assistance of a police unit. The paramedic considered that Ronald Wilson had already passed away before her arrival. However, because the intoxicated crowd of onlookers was becoming unruly, she continued to administer CPR to Wilson. While she was doing so, she asked those nearby what had happened, to which you responded "I hit him, I hit him hard and he went down". You asked the paramedic if she could save Wilson, and you expressed concern that he would be alright.

14 Subsequently, an ambulance arrived. As Ronald Wilson was being loaded into the rear of the ambulance, you approached the police and said, "You may as well take me with you because I did it". You were then arrested. While you were with the police, you said to them that you had been in bed, that Wilson had woken you, and that he was giving you "the shits", so you clipped him in the head in the back yard. You told the police that you hit him "pretty hard", and that after you hit him, he walked off and laid down.

15 After Ronald Wilson had been placed inside the ambulance at the Rules Road property, he was conveyed to the Bairnsdale Hospital, where he was pronounced deceased on arrival. A subsequent post-mortem, conducted on the next day, found that the cause of Ronald Wilson's death was a subarachnoid haemorrhage in the setting of blunt force head injury. In addition, a number of superficial and deep injuries were identified to Wilson's face, including above his eye, his mouth and his jaw line. Those injuries were found to be consistent with at least three episodes of blunt force trauma.

16 Later that evening, at 10.45pm, you participated in a record of interview with the police. In that interview, you said that while you were in bed, Ronald Wilson had woken you up by "barking" at you. He was in front of you in the laundry. You alleged that he tried to hit you, but he did not connect, and then you hit him to the head. You told the police that Wilson then went outside, but you did not follow him. You said that Wilson did not fall after you hit him, but that subsequently, when you went outside, you saw him lying on the ground, and you thought that he had passed out because he had drunk too much alcohol.

17 On the next day, 2 April, a member of the Homicide Squad conducted a further interview at Bairnsdale Police Station at 5.45am with you. In that interview, you told the police that, although you had consumed some beers on the day, you were not intoxicated. You claimed that Ronald Wilson had been telephoning Gina in the middle of the night telling her that she should be with him, and that when he arrived, he was smoking cannabis and drinking large quantities of wine. You stated that when you came out of the bedroom, Wilson was coming in through the laundry door abusing you. You alleged that he then took a swing at you, but he did not connect. You said that, in response, you hit him and pushed him out the door .You stated that you were acting in self-defence in doing so. You remained in the house to fetch your thongs. You then went outside, and saw Ronald Wilson lying unconscious on the ground near the fire hydrant. You claimed to the police that you had been acting in self-defence, that you were not the aggressor in the incident, and that you were just protecting yourself by trying to get Wilson out of the house.

18 Later on the same day, you participated in a recorded re-enactment with the police, in which, substantially, you confirmed the earlier accounts that you had given to them. On completion of the re-enactment, you were charged with murder. You were remanded in custody, where you have remained. A committal proceeding took place in April 2015. Subsequent to the committal, you pleaded guilty to the charge of manslaughter on 19 May.

19 The offence of manslaughter, to which you have pleaded guilty, is a most serious offence, for which the maximum sentence is 20 years' imprisonment. You have pleaded guilty to that offence on the basis that you caused the death of Ronald Wilson by an unlawful and dangerous act, in that the assault, which you inflicted on Wilson, involved such a degree of force that a reasonable person, in your position, would have realised that he was exposing Wilson to an appreciable risk of serious injury.

20 By your criminal actions, you have taken the life of a fellow human being. At the time of his death, Ronald Wilson was 48 years of age. Ronald Wilson was a much loved member of his family. The victim impact statements of his parents, and of his youngest son, were read in court, and I have re-read them. While Ronald Wilson was the principal victim of your crime, nevertheless it is clear that those, and other members, of his family are also real victims of it. Ronald Wilson was a devoted and loving son to his parents, and he was much cherished as a father. I have no doubt that the grief and anguish of his family will continue for a long time after you have completed any jail sentence which I am to impose on you. As I stated in the course in your plea, the victim impact statements are an appropriate reminder of the gravity of your offending, and of the lasting and profound nature of the consequences of it.

21 I accept that the assault by you on Wilson was not premeditated. Rather, it was fuelled by your state of intoxication, and by your misconceived anger and jealousy in respect of the friendliness which Ronald Wilson showed to Gina Wilkinson. While, during the lead up to the incident, you had adopted a physically aggressive approach to Ronald Wilson, I accept that you did not intend to harm him in the way in which you did.

22 I also accept that you have demonstrated genuine remorse in respect of your wrongdoing, and for the death of Ronald Wilson which you have caused. The statement of the ambulance paramedic, who attended Wilson, describes how you exhibited sincere concern for your friend as the paramedic was attending to him. In your interviews with the police, you minimised the role which you had played in causing Wilson's death. Nevertheless, at the completion of the re-enactment, you did express regret for what had occurred. The character references of Gina Wilkinson and Adrian Jackson, and the report of Dr Lester Walton, also speak of your contrition for taking the life of your friend. Based on those matters, I accept that you are genuinely remorseful.

23 I turn to your personal background. You were born in Ireland in 1957, and are now 58 years of age. You came to Australia with your parents and your brother when you were six years of age. Your family lived in Adelaide, where you were educated to Year 8 level. After you left school, you were employed in your parents' roadhouse. While working there, you became acquainted with a number of truck drivers, and you became interested in pursuing their occupation. Accordingly, when you gained your driver's licence at the age of 16 years, you commenced work as a truck driver. You were engaged in that occupation for most of the following 35 years.

24 Your domestic life has been somewhat chequered. You married at the age of 21 years, but that marriage was short lived. You have a daughter by that relationship, but you have lost contact with her. Subsequently, you married your wife Wendy. You stayed with her for some 28 years, and there were three sons of that marriage. Although you separated from your wife some time ago, you have remained firm friends with her, and the marriage has not been dissolved. Since you have been remanded in custody, you have deliberately ceased to have contact with your sons, since you do not wish them to visit you in jail.

25 After you separated from your wife, you then travelled to Queensland, where you formed a relationship with another woman. There are two children by that relationship, who are now aged 8 years and 6 years respectively. However, after separating from her, you have had no further contact with them.

26 As I stated, throughout that period you were employed principally as a truck driver. When you were living with your wife, you did gain employment in the local area, in order to stay with your family. However, it would appear that the occupation, from which you gained most satisfaction, was in transport. The work was quite difficult, as it often involved you driving on unmade roads in the Australian outback to remote locations. However, it seemed that you enjoyed the solitude involved in the work, and the sense of freedom which it gave you

27 When you were 40 years of age, you contracted viral meningitis. In the context of your debilitation from that illness, it would appear that you became troubled by depression. In addition, you have been a heavy drinker of alcohol since the young age of 16 years. While you were working as a truck driver, you were able to moderate your drinking while you were on a job, but, according to your counsel, you compensated for that by indulging in very heavy bouts of drinking between driving jobs.

28 Ultimately, you ceased employment about eight years ago, due to a combination of your ongoing depression and also an injury to your hand. You moved to Lakes Entrance. There you soon became accepted by and friendly with members of the community at Lake Tyers. In due course, you were invited to reside there. During this time, you formed a close relationship with Gina Wilkinson. Ms Wilkinson is a highly respected Indigenous Elder, who plays a central supporting role to the Aboriginal community at Lake Tyers. Your relationship with Gina Wilkinson has survived the traumatic circumstances of this offence, and she has continued to be supportive of you since you have been in prison.

29 You have a relatively long list of prior convictions. However, each of them are for minor offences. You do have three convictions for common assault, in 2001, 2004 and 2012. The last conviction (in 2012) was for an offence committed by you in 2006. It appears that you breached bail, and departed from the State, thus causing the delay in the ultimate resolution of that matter. Nevertheless, it is apparent from the sentences, which you received for each of the three previous convictions of common assault, that they could not have been serious instances of that offence.

30 In your last matter, in January 2012, the Bairnsdale Magistrates' Court convicted you and placed you on a community corrections order, subject to a number of conditions, including that you be assessed and treated for alcohol abuse and that you undergo a mental health assessment.

31 You have suffered from depression for a number of years. In 2006, you were an inpatient of North Western Mental Health. You have had further periods of hospitalisation in February 2012 and February 2013 for alcohol abuse and associated depression. On 10 January 2014 (less than three months before the offence), you were admitted to the Flynn ward in a state of acute intoxication, and you were considered to be actively suicidal. You have made four attempts to end your life. On one occasion, you lay on a train track, and you only survived because the train driver was able to bring the train to a halt before it ran over you.

32 You have been assessed by Dr Lester Walton, consultant psychiatrist, on 19 June last. In his report, Dr Walton describes your history, which I have set out. Dr Walton concludes that you are a chronic alcoholic, together with long term major depression, with each condition interacting with the other, promoting the chronicity of both conditions. You are fortunate that, notwithstanding your past history of alcohol abuse and meningitis, you have not sustained any brain injury, and you remain intellectually intact. Dr Walton considers that you are an alcohol dependent person. It seems that in prison you have now been prescribed effective anti-depressant medication which has helped your condition. In addition, your enforced abstinence from alcohol while in prison has had a beneficial therapeutic effect on your condition.

33 Dr Walton concludes that your offending was principally related to alcohol induced intoxication. However, he also considers that your depression made some, albeit limited, contribution to your offending, by compromising your capacity to exercise proper social judgment. Dr Walton considers that that contribution, by your depressive illness, to the offending, was at the lower end of the scale. Dr Walton observes that a term of imprisonment is ordinarily more onerous for a person such as yourself who suffers from depression. He considers that your limited previous criminal history provides some basis for the confidence for your rehabilitation.

34 While you have been remanded in custody, you have occupied yourself gainfully. The first seven months of your incarceration was spent in the Melbourne Assessment Prison, where you worked in the kitchen. Subsequently, when you were transferred to the Metropolitan Reception Centre, you worked as a billet in the industry section. You have completed the 24 hour relapse prevention drug and alcohol program which was conducted over a period of two weeks. In addition, you have gained certificates in providing basic emergency life support, in participating in workplace safety arrangements, and in kitchen operations. In addition, as Dr Walton mentioned, you have been prescribed Zoloft as medication for your depression. That medication has proved to be significantly more beneficial for you than the medications that had been prescribed for you before you went into prison. It appears thus that your moods have been relatively stabilised. All of those matters provide some cause for optimism in relation to your rehabilitation.

35 On your plea, I received a testimonial from Ms Wilkinson, who has described how you have been very supportive and caring in assisting her to look after a frail family member at home. You have never been physically or verbally violent towards Ms Wilkinson, or any member of her family. You respect Ms Wilkinson's Aboriginal heritage, and have properly contributed to the running of her household.

36 I also received a testimonial from Adrian Jackson, who is engaged as a volunteer with the Department of Justice carrying on duties as an independent third person. In that capacity, Mr Jackson acted as an independent third person during your police interviews. He has known you for five years. Mr Jackson describes how you have often been affected by alcohol and depression. However, he has never known you to commit any act of violence. He regards you as a 'peaceful bloke with a good sense of humour'. Mr Jackson states that Gina Wilkinson has been totally supportive of you throughout your incarceration, and that she will continue to support you until your release from prison. As I have already stated, both Gina Wilkinson and Adrian Jackson attest to the fact that you are deeply remorseful for your actions, which resulted in the death of your friend.

37 In summary, then, you have pleaded guilty to a serious crime of violence, which resulted in the death of an innocent person. As I stated, I accept that your offending was not premeditated. On the balance of probabilities, and based on the report of Dr Walton, I accept that your long standing depression played some role in your offending by compromising your capacity to make appropriate judgment, although that contribution was, at the most, limited.

38 In mitigation, I take into account your plea of guilty. That plea has obvious utilitarian benefits, and it has spared the family of Ronald Wilson the anguish of a trial. I also accept that your plea was accompanied by genuine remorse. While you do have previous convictions, none of them are serious. On the other hand, you have a previous history involving hard work. I also take into account the character evidence, to which I have referred, in your favour.

39 I also accept that you are making genuine steps to rehabilitate yourself while you are in prison. As your addiction to alcohol, and your depressive illness, are now long standing, it is most important that you continue to seek and receive appropriate treatment in respect of both of them. However, based on the matters to which I have referred, I am persuaded that you do have reasonable prospects of rehabilitation. I also accept that, because of your depressive illness, a term of imprisonment will be more onerous for you.

40 In determining the sentence that I pass on you, it is necessary that that sentence be such as to appropriately express the condemnation by this Court, and the community, of your wrongdoing, and to uphold the value which our society places on each human life. It is also important that the sentence be of sufficient severity to constitute a clear message that this Court will not tolerate alcohol fuelled violence of the kind in which you engaged in this case. Thus, the role of general deterrence, in a case such as this, is important. While I accept that you have genuine remorse, and indeed some insight, in respect of your offending, I nevertheless consider that it is important that the sentence be such as to reinforce to you your appreciation and understanding of your wrongdoing.

41 Taking those matters into account, and bearing in mind the mitigating circumstances which I have described, I sentence you as follows. I sentence you to 7years' imprisonment. I fix a minimum non-parole period of 5 years. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 520 days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.

42 As I have stated, I have taken into account, in your favour, the fact that you have pleaded guilty. Section 6AAA of the Sentencing Act requires me to specify the sentence, and the non-parole period, that I would have imposed, but for your plea of guilty. For that purpose, but for your plea of guilty, I would have imposed a sentence of 8years and 6 months imprisonment, with a minimum non-parole period of 6 years.