DPP v WJR, GSJ & Reynolds [2004] VSC 533

Supreme Court of Victoria|2004-12-20|Before: Cummins J

Criminal Law - sentencing - manslaughter - pleas of guilty - death of homeless man - juveniles - principles applicable.

This proceeding is being simultaneously telecast to the Supreme Court in Mildura. Unfortunately the Court cannot be personally present in Mildura this week, by reason of commitments here this week, as you might understand, and I am glad at least we are able to provide a video coverage to you simultaneously with the court proceedings here.

In relation to the media, as I am sure you appreciate, s.26(1) Children and Young Persons Act 1989 prohibits the publication of particulars likely to lead to the identification of the accused persons who are under 18 years of age, and I am sure you are conscious of that. There is a short typed statement there provided to you, which I hope might assist in guiding you in relation to what you are not allowed to publish, and what you are allowed to publish, so that is provided to you there. That is for purposes of dissemination in the media. In the court here in Melbourne and Mildura, I will state the names of each of the accused as I impose sentence, but the names of the two accused under 18, Mr W and Mr G are not to be published in accordance with that section and the notice.

Mr W, Mr G and Mr Reynolds, you may remain seated during the imposition of this sentence.

The genesis of this crime is an odious film made in the United States of America, depicting the degradation and humiliation of vulnerable, homeless men. The film, lasting 57 minutes and exhibited before me, is entitled "Bumfights". The vulnerable homeless men were called bums by the makers of the film.

Here in Australia, in Mildura, the film was downloaded from the Internet and viewed by each of you. The problem for the three of you was not the moral problem of the makers of the film. Your problem was boredom, lack of direction and immaturity. Your problem - a serious, but sadly not an unfamiliar problem - combined with the odious film, has led to tragic consequences: the death of a decent, well loved Mildura man, Mr Arthur Walter Burrows, aged 66.

Mr Burrows had been born on 9 October 1937, at Wentworth, New South Wales. For many years he had lived in the Mildura area. He was physically not a well man. He lived in a humpy near the Murray River. He caused trouble and offence to no-one. The first photograph of a tendered book of 135 photographs, one of the living Mr Burrows, shows a face of kindness and interest. There are seven victim impact statements tendered before the Court. Each one of them is a most moving and impressive document, and I have central regard to those victim impact statements in the sentences I here impose.

Mr Burrows had every right to be respected. The law respected him. The community of Mildura respected him. Unfortunately, you three accused did not respect him.

Mr Burrows' humpy home was under a peppercorn tree. It consisted of two mattresses placed under a wooden crate, an armchair and two milk crates used as tables. The walls of the humpy were made from thick cardboard and the roof had a lining of carpet supported by cardboard held up by bamboo poles that were tied to the peppercorn tree. It was a tinderbox and obviously so.

Stimulated by the odious film "Bumfights", you with some others went to Mr Burrows' humpy home in order to humiliate him. You did not intend to kill him. You did not intend to cause him serious physical harm. None of you foresaw that he would die or be seriously injured by your actions or that such consequences were probable. Your conduct, however, was so gross in its negligence and involved such risk that you are to be punished by the criminal law.[1]

Late on the Saturday night of 1 November 2003 and into the early hours of Sunday 2 November 2003 the three of you, with others, attended Mr Burrows humpy home. He had been living there peaceably for many years. His home was near the railway line, in Jaycee Park, close to the Murray River. He had set up his home, in his own private entitled way, under the peppercorn tree, and lived there inoffensively and peaceably.

You, Mr W, were the leader of this behaviour, willingly assisted by Mr G, with Mr Reynolds filming the humiliation of the victim. You interfered with him when he was seeking to be asleep, interrogated him, taunted and mistreated him, and in the end, playing with fire, you, Mr W, lit the tinderbox which was his entitled home. You did this, in full view of the other two accused, by lighting with a cigarette lighter some carpet on a milk crate next to the deceased's bed. There was only a small flame when you all left. As I say, you did not intend him to be killed or seriously harmed. But even five-year-olds know not to play with fire and each of you full well knew not to play with fire in Mildura in November in the tinderbox which was Mr Burrows' home.

You left, went whence you came, viewed the video film that had been made, and then, concerned that there might be a potential of harm to the victim, you returned to Mr Burrows' humpy home. You found police and fire already in attendance and, tragically, the fire that you had commenced had engulfed the victim. Mr Burrows died at the scene. An autopsy conducted on the night of 2 November 2003 at the Coronial Services Centre, Southbank, Melbourne by the distinguished pathologist Dr M.P. Burke on the severely burnt body of Mr Burrows showed black sooty material lining the airway of Mr Burrows and toxicological examination revealed a carbohaemoglobin saturation of 32% indicating that Mr Burrows was alive and breathing at the time of the fire. There were no bony fractures or like injuries and no head injury. The cause of death was smoke inhalation. You left the scene, distressed at what had occurred. But when you had earlier left the scene, the fire having started, each one of you could have put the fire out and none of you did.

You were asked questions by local police and, understandably, at first you denied any contact with the offence, but shortly thereafter each of you fully confessed your parts in the happenings to the police. I have examined more than once the video of the police interviews of each of you. Each of you fully answered the questions asked of you throughout that day and night, and I consider each of you was truthful in your answers to the police. To the police when asked for a reason for your fatal conduct you Mr W said (Q.659):

"Well, we only lit the fire, just to get it on camera, just to make it more funny, I s'pose. We didn't really - it wasn't intentional or anything to kill him."

"Sorry for anyone that I've hurt through what I've done."

"My reason for being involved is that I suppose I was there and I was just going along being stupid with my mates and it got extremely out of control, but what did happen I didn't mean and I'm pretty sure the rest of my mates did not mean to happen and I apologise to everyone about it."

I commend the investigating and interviewing officers, in particular Detective Sergeant Paterson for the fair and firm manner the investigation and interviews of the accused were conducted.

Each of you was originally charged with murder. However, after the committal proceedings, which were held in May and July 2004, the Director of Public Prosecutions accepted pleas by each of you to the crime of manslaughter. I consider that decision by the Director was entirely correct and proper. Your crime was the crime of gross negligence in your conduct on that night at Mildura, not a crime of intending to kill or intending to do really serious injury to the deceased. But it was a crime which should never have occurred and it was a crime which led to the death of a decent man who should have been not interfered with by you.

You, Mr W, are now just 17 years of age, having turned 17 on the first of this month. I have closely considered the exhibits tendered on your behalf, including the psychological report of Mr Jeffrey Cummins of 16 November 2004 of his assessment of you conducted on 14 November 2004, the letter of Chaplain John Shaw of the Melbourne Juvenile Justice Centre of 12 November 2004, the progress report of Mr Cord Sadler, Unit Manager, Melbourne Juvenile Justice Centre, of 17 November 2004, the report of Ms Kaylene Preston, Campus Coordinator, Kangan-Batman TAFE, of 12 November 2004 and the reports and certificate tendered with that report including that of Mr Ron Barassi, Acting Assistant Principal, Distance Education Centre, Victoria, of 12 November 2004, your mother's letter to the Court of 16 November 2004, and your own letter to the Court of 12 November 2004. I consider, Mr W, your letter to the Court to be entirely genuine and honest.

I have had regard to the witness evidence called before me on your behalf, Mr W, being of Mr Cummins, psychologist and Chaplain Shaw, to whom I have referred and also of Ms Hilary Makepeace, Area Manager, Juvenile Justice Program, Department of Human Services, Mildura, Ms Julie Stephens, Officer Manager, Care and Respite, Buronga and of your grandfather, Mr John W, viticulturist of Swan Hill, a most impressive man.

You have no prior convictions. Despite your terrible actions, there is a lot of good in you, Mr W. You have true and genuine remorse and you have excellent prospects for rehabilitation.

Mr G, you are now almost 17 years four months of age, having been born on 29 August 1987. I have closely considered the exhibits tendered on your behalf, including the psychological report of Mr Ian Joblin of 8 December 2004 of his assessment conducted of you on 6 December 2004, the psychological report of Ms Carla Lechner of 4 September 2003 of her assessment of you conducted on that date, and the report of Ms Voula Bilidis, Acting Unit Manager, Southbank Unit, Melbourne Juvenile Justice Centre of 10 November 2004 and your letter to the Court of 10 November 2004.

I have had regard to the witness evidence called before me on your behalf, being of your uncle Mr Adam Rogers of Werribee and your grandmother Mrs Elizabeth Rogers of Werribee, both of whom are very decent and genuine people.

You have some remorse for your actions. It is troubling that at the age of 16 years and two months you had 23 prior convictions, sustained on four occasions from 17 September 2002 to 16 September 2003, including one on 16 September 2003 for arson, being present at the burning of a stolen car. However, significantly for this sentence, you are just 17 years of age.

Mr Reynolds, you are now 19 years five months of age, having been born on 5 July 1985. I have closely considered the exhibits tendered on your behalf, including the psychological report of Mr Michael Crewdson of 14 December 2004 of his assessment of you conducted on 14 November 2004, fourteen reports from 3 May 1994 to 18 July 2000 of Dr Richard Christie, paediatrician of Midland, Western Australia, and school reports of Warriapendi Primary School and of Warwick Senior High School, Western Australia, from July 1992 to September 2000.

I have also had regard to the witness evidence called before me on your behalf, being of Ms Barbara Reynolds, Medical Secretary, of Perth, being your step-paternal grandmother and of Ms Denise Reynolds, primary school teacher, of Perth, being your aunt. Both persons were very decent and impressive women.

You, Mr Reynolds, have two minor prior convictions, which are of no consequence for the purposes of this sentence, except that they indicate the drifting lifestyle you then (in February 2003) were leading.

In your individual ways, each of you has had a most troubled upbringing. It is not profitable to canvass the detail of those difficulties here. It is contained in the numerous reports I have referred to and in the oral evidence given before me. None of you suffers from a psychiatric illness and each of you is of at least average intelligence. You, Mr W had an adjustment disorder; you, Mr G, had attention deficit hyperactive disorder; and both of you were seriously abusing cannabis. You, Mr Reynolds, had had attention deficit hyperactive disorder. But each of you knew precisely what you were doing and are fully responsible for your actions.

Each of you has pleaded guilty to manslaughter and from an early time has been prepared to do so. Each of you has had the burden of facing the charge of murder. Each of you is young. Each of you, after initial denial, co-operated with the police, answered all questions asked of you and were truthful with the investigating officers.

There is a complex of considerations affecting the relativity of sentences appropriate for each of you. You, Mr W, were the leader on this night. You lit the flame and a week earlier, you had mistreated Mr Burrows by throwing paint on him; yet, you are the youngest; you have deep and genuine remorse; you have no prior convictions; and you have full prospect of rehabilitation.

You Mr G, were an active participant; in your police interview, you demonstrated little remorse for your actions and little respect for the victim; and you have a large number of prior convictions for one so young, including a conviction for arson; yet, you were the one who extinguished a cigarette butt at the scene, before you left.

You Mr Reynolds, are the oldest and you participated by filming the events; yet, you have deep and genuine remorse, demonstrated both in your police interview and in your demeanour before me; and you have the burden of being in part-protection in an adult gaol, and of being six years younger than any other person there held.

When all is said and done, this was a joint crime in which each of you participated willingly, and I consider the same quantum of sentence should be imposed upon each of you.

Because of the seriousness of the offence it is necessary to impose a sentence of imprisonment upon each of you. The maximum period of detention available under an order for detention in a Youth Training Centre is three years[2], which period is inadequate for the crime of manslaughter which you committed.

However, in the case of the three of you, given your youth and your immaturity, and in order to foster the central element of rehabilitation, I consider it is proper to direct a shorter minimum term than usually I would direct. With young offenders, as each of you is, whilst giving full respect to the seriousness of the offence and the tragedy of the death of the victim, the law emphasises the importance of rehabilitation, not to the exclusion of other elements of sentencing, but as a central element.

I consider it is proper to direct the availability to each of the three of you, of parole at a comparatively early date. Each of you has already spent 13 and a half months in pre-sentence detention.

For the manslaughter of Arthur Walter Burrows I shall sentence you, Mr W, to a period of imprisonment of five years. I shall direct that you serve a minimum term of imprisonment of two years before you are eligible for parole. You have already served 413 days' pre-sentence detention, which is deducted from the term of imprisonment of five years, and is deducted from the minimum term of two years, which you face.

Accordingly that means, Mr W, that should you conduct yourself properly in custody, which you have been doing to date and I am sure you will continue to do, you should be eligible for parole within less than 12 months; in fact, in about 10 and a half months from now.

I shall declare the period of 413 days' pre-sentence detention as already served under the sentence I shall impose, and I shall so certify.

I recommend to the Adult Parole Board that you immediately be transferred to serve your sentence at the Youth Training Centre where you presently are, pursuant to s.244(1) Children and Young Persons Act 1989. Further, I recommend to the Adult Parole Board that you remain at a Youth Training Centre until you are eligible for parole. All things going well that would mean that you would be eligible for parole without ever having to go to an adult gaol.

I request the Secretary of the Department of Justice forthwith to prepare a s.244(1) Report so that the Adult Parole Board can consider a decision, which I recommend, that you be transferred to where you presently are under this sentence.

Mr G, for the manslaughter of Arthur Walter Burrows, I shall sentence you to be imprisoned for a period of five years. I shall direct that you serve a minimum term of imprisonment of two years before eligibility for parole. I shall declare the period you have served of 413 days' pre-sentence detention as already served under the sentence I shall impose and I shall so certify.

I recommend to the Adult Parole Board that you be immediately transferred to the Youth Training Centre where you presently are pursuant to s.244(1) Children and Young Persons Act 1989, and that you remain at a Youth Training Centre until you are eligible for parole. I request the Secretary of the Department of Justice to prepare a s.244(1) Report for the Adult Parole Board for it to consider my recommendation.

That again, Mr G, means that if you conduct yourself properly in custody, which is essential, you should be eligible for parole also in less than a year from now.

Mr Reynolds, you are in an adult prison. I have already noted the burden upon you of being in part-protective custody and of being six years younger than the next oldest person in your place of custody. Given your age, now 19 years five months, and your personal particulars, I consider that it is desirable that you remain where you are being properly protected. You are being cared for well in the Borrowdale Unit at the Port Phillip Prison, where you have been since 16 April 2004, in part-protection. I do not recommend that you be transferred to a Youth Training Centre, but of course if the Adult Parole Board decides you should be, it has every power to do so.

In your case, Mr Reynolds, for the manslaughter of Mr Burrows I sentence you to imprisonment for five years. I direct that you serve a minimum term of imprisonment of two years before eligibility for parole. I declare the period of 413 days' pre-sentence detention that you have already served as served under the sentence I impose and I so certify. That again means, Mr Reynolds, that all things being equal and you conducting yourself properly in custody, which I am quite sure you will, you will be eligible for parole in less than a year from now.

In the case of the two younger accused, the consequence of the imposition of a sentence of imprisonment is that the accused are imprisoned, that is placed in an adult prison, until the Secretary provides the Report which I have asked for and then the Adult Parole Board considers the Report as to whether the two younger accused should be "transferred" from the prison to youth training. Because of the time of year, I understand that that cannot be done today. In that circumstance, I have done the following. I have sentenced Mr Reynolds today because he is an adult accused person. I said in the case of Mr W and Mr G I "shall" sentence them and have stated what the sentence shall be. Subject to hearing counsel, I shall not formally sentence either Mr W or Mr G today, which means they can go back to youth training this afternoon. When the Report is prepared by the Secretary and the Adult Parole Board has considered it, which I think will be in the next 48 hours, then if the Adult Parole Board decides it is appropriate to "transfer" the two younger accused from imprisonment to youth training, I shall formally sentence the two younger accused. The only variation is I will add one or two days to the pre-sentence declaration depending upon the date of the actual making of the order of imprisonment. That will mean that neither of the two younger accused will spend Christmas and New Year in an adult gaol waiting for the formalities to be completed, being the Report, and the decision of the Adult Parole Board, which is not a formality but is an important decision to be made.

Mr Leckie, is there any legal difficulty with that course?

MR LECKIE: Not that I am aware of, Your Honour, and I make no submission.

HIS HONOUR: Mr Pica, is there any difficulty with that course?

HIS HONOUR: Very well, I am obliged to you. Mr Marquis?

HIS HONOUR: Very well. In that event, I do not consider it is necessary for us all to assemble again. I can sign the sentence on the papers later this week. I hope it will be in the next couple of days. I will certainly sign the sentence as soon as the Adult Parole Board has made its decision. If its decision is that the two younger accused be "transferred" to youth training, that means that they will not have to spend Christmas and New Year in an adult gaol.

I conclude where I began. The victim impact statements in relation to the deceased were most moving and impressive documents and the Court respects those statements.

I have signed the formal orders of s.464ZF and for disposal and forfeiture.

[1] See Nydam v R [1977] VicRp 50; (1977) VR 430 at 445; cf. R v Crabbe [1985] HCA 22; (1985) 156 CLR 464.

[2] Section 32(3)(b) Sentencing Act 1991.

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