Lee v The Queen [2018] VSCA 343

2 Eventually, on 8 September 2017, the applicant pleaded guilty to manslaughter[1] in the Supreme Court. Following a plea, on 10 November 2017, the applicant was sentenced to be imprisoned for 8 years with a non-parole period of 5 years.[2]

3 By a Notice dated 8 December 2017, the applicant sought leave to appeal against his sentence on three grounds.

4 On 21 March 2018, Kyrou JA refused leave to appeal on all grounds.[3] Despite that refusal, by a notice of election dated 29 March 2018, the applicant sought to have his application for leave to appeal against sentence determined by this Court.[4]

5 At an early stage of the hearing in this Court, however, counsel for the applicant abandoned two grounds of appeal,[5] and relied solely on a ground that contended that the sentence was manifestly excessive.

6 At the conclusion of oral argument, we refused leave to appeal, and announced that we would subsequently provide reasons for that order. These are those reasons.

7 It is necessary to say more about the circumstances of the crime committed by the applicant.

8 On the evening of Saturday 16 April 2016, Patrick Cronin went with friends to the Windy Mile Hotel in Diamond Creek. At approximately 11:00 pm, a brawl involving a number of males broke out on the footpath at the front of the hotel. Mr Cronin was ushering a friend away from the fighting when the applicant - whom he did not know and who did not know him - punched him to the right side of the head. Although the seriousness of the injury caused by the applicant's punch was not immediately appreciated, the punch caused a fracture to the right hand side of Mr Cronin's skull and an associated extradural haemorrhage. The injury was fatal.

9 In the afternoon of that day, Mr Cronin and his brother, Lucas, had played football for the Lower Plenty Football Club. Later in the evening, Mr Cronin and his friends Nathan Heywood and Kyle Keenan went to the home of a mutual friend, Ashton Johannsen. Other friends, Jesse Matthews and Anthony Hopkins, were already there. The group remained at the Johannsen home eating pizza and having a few drinks until, at about 9:30 pm, they decided to walk to a local hotel, the Windy Mile, approximately 800 metres away. The group arrived at the hotel at 9:45 pm and met with another friend, Josh Davis, who played rugby for the Eltham Rugby Club and was at the venue with teammates from that club.

10 The Windy Mile Hotel is a bar and restaurant located on the corner of Main Road and Hyde Street, Diamond Creek. Its main entry is through double wooden doors at the corner of Main Road and Hyde Street, and there is a second door on Main Street which leads directly to the restaurant. The venue has internal and external CCTV cameras which were operational and recording at the time of the fatal incident. When they arrived, Patrick Cronin and his friends took up a position near the end of the bar close to where a solo acoustic musician was performing.

11 The applicant had spent the majority of the day at the Diamond Creek Football Club, where in the course of the afternoon his father, Graeme Lee, was inducted as a life member of the club. He left the club at 5:22 pm with a group of friends and family to attend a comedy performance at the Shoppingtown Hotel in Doncaster. The applicant arrived at that venue at 6:18 pm, drinking and socialising throughout the performance. At about 9:53 pm, he and his group of friends travelled to the Windy Mile Hotel, arriving at 10:21 pm. At 10:25 pm, the applicant entered the Windy Mile through the door on Main Street and ordered drinks at the bar. He remained at the bar drinking and socialising with friends, the majority of whom were connected with the Diamond Creek Football Club.

12 At approximately 11:00 pm, a fight began outside the hotel in the area in front of the double doors on the corner of Main and Hyde Streets. A few minutes later, at 11:04 pm, Patrick Cronin left his position near the bar to walk outside where the brawl was already underway. CCTV footage shows him taking hold of his friend, Anthony Hopkins, trying to get him away from the violence.

13 The brawl had begun in the vicinity of the main hotel doors on the corner of Main and Hyde Streets. It started with angry words passing between a man named Joe Hitchcock and some friends of the Eltham rugby team outside the hotel, and escalated when Hitchcock struck Josh Davis with a fist to the face. The ensuing brawl mainly involved people associated with either the Diamond Creek Football Club or the Eltham Rugby Club.

14 About a minute after the brawl started, the applicant walked out of the hotel through the main doors and stood off to the side of the fighting. Patrick Cronin walked out of the hotel separately at around the same time. He was not aggressive and took no part in the fight, instead trying to get his friends away from it. He initially took hold of his friend Anthony Hopkins who was involved in a struggle with a group near the main doors.

15 While Patrick Cronin was holding Hopkins trying to pull him out of the brawl, the applicant approached him and Hopkins from their right hand side, outside Patrick Cronin's field of vision. Without any warning, the applicant threw a right-handed punch at Hopkins, striking him to the right side of the head. The applicant then drew back his right fist and punched Patrick Cronin to the right side of the head in the vicinity of his right ear, the force of the punch making him stumble sideways. In quick succession, the applicant then threw a third right-handed punch which did not appear to connect. After that, the applicant - who had for some years trained, and was proficient, in the martial art, Muay Thai - continued to fight with other patrons, while Patrick Cronin continued to try to extricate Hopkins.

16 Police eventually arrived and the fighting stopped. CCTV footage then shows Patrick Cronin walking away from the fighting in the area of the main doors in the direction of the door of the hotel on Main Street. He is seen on various occasions to rub the right side of his head. A little later, Patrick Cronin and a group of friends made their way back to Ashton Johannsen's house. As they were leaving the area, Patrick Cronin told a friend, Fraser Delbridge, that he had been trying to pull someone out of the fight when someone hit him to the side of the head. As he explained this to Delbridge, he demonstrated by motioning to his right temple area with his right fist. He told Delbridge and others at the scene that he had been hit on one occasion during the affray.

17 At approximately 11:30 pm, Patrick Cronin and his friends arrived back at the Johannsen house. Shortly afterward, he complained of not feeling well and having a headache. He said that he was going to take some Panadol and go to bed on a mattress which was already set up in the lounge room. By 12:30 pm, however, his condition had deteriorated significantly and he was discovered by Anthony Hopkins vomiting in the toilet. He told Hopkins that he had been hit to the temple and that he thought he had a concussion. At about 1:00 am, Patrick Cronin telephoned his mother, Robyn, and asked her to collect him. His condition continued to deteriorate, however, and by the time his mother arrived at approximately 1:15 am, he was unresponsive. Robyn Cronin told Hopkins to immediately telephone an ambulance. While waiting for the ambulance, Patrick Cronin had a seizure and was convulsing. The first ambulance arrived at 1:30 am, shortly after he became unconscious. MICA paramedics arrived shortly after and it was determined that Patrick had suffered a traumatic brain injury. He received treatment to stabilise his condition and then was transported to the Royal Melbourne Hospital.

18 Upon arrival at the hospital, it was determined that Patrick Cronin had suffered a significant bleed on the right side of his brain which had resulted in a non-survivable brain injury. Testing during the course of Sunday 17 April 2016 revealed no brain activity, and, at 8:25 pm that day, Patrick Cronin died as a result of what the pathologist described as 'an acute extradural haemorrhage following blunt force head trauma'. An autopsy revealed a single injury to the right side of the head, involving a two centimetre hairline fracture to the right side of the skull with associated laceration of the right middle meningeal artery at the site of the fracture. The lacerated artery produced an acute extradural haemorrhage which in turn caused death.

19 CCTV footage from the hotel was released to the media. Still images of the applicant identified him as a person of interest to the police.

20 On 19 April 2016, the applicant surrendered himself to police and participated in a 'no comment' interview. He was then charged with murder and remanded in custody. On 20 June 2016, despite facing a murder charge, the applicant was released on bail, a principal factor leading to the grant of bail being the weakness of a case of murder.[6] In the result, at the committal hearing on 17 May 2017, the prosecution withdrew the charge of murder, and the applicant was committed for trial on a charge of manslaughter by unlawful and dangerous act.

21 In early 2017, the prosecution filed a notice pursuant to s 9A of the Sentencing Act 1991, giving notice that the prosecution would seek the statutory minimum sentence for manslaughter of 10 years' imprisonment under s 9C(2).

22 The applicant pleaded not guilty to manslaughter when his trial began in the Supreme Court on 6 September 2017. On 8 September 2017, however, after the prosecution opening and defence response were presented and a view of the scene conducted, the applicant was re-arraigned and he pleaded guilty. Shortly afterwards, the prosecution revoked the s 9A notice, the result of which was that the mandatory sentencing provisions no longer applied.

23 The applicant was 33 when he offended.[7] Up to that point, he appears to have been of good character, having no prior convictions. The judge assessed the applicant's prospects of rehabilitation as 'good'.

24 Having left school at Year 11, the applicant completed a four year shop-fitting apprenticeship. He has also worked as a rigger, holding appropriate qualifications. His work history is good.

25 The applicant is the youngest of three children. He grew up in a close family and had a positive childhood. His parents provided references attesting to the applicant's good character and declaring their support for him. Other written references in support of the applicant were also provided by other family members and many of his friends. As the sentencing judge remarked, the applicant is 'held in high regard by a large number of people', many of whom attended the plea hearing 'to demonstrate that support'.

26 On the plea, the applicant's wife, Candice, gave evidence. She and the applicant have been in a relationship for 12 years, and have been married for three. They have a three year old son. Their relationship, the sentencing judge said, is 'stable and supportive'. The applicant's wife and son will suffer financial hardship because of his incarceration.

27 A clinical psychologist, Mr Mathew Staios, provided a neuropsychological report dated 2 October 2017. He diagnosed that the applicant was suffering from depression. Further, he said that the applicant 'displayed a good degree of empathy and remorse for his action'. The sentencing judge considered that the report supported the conclusion that the applicant is remorseful for what he has done and that he shows 'significant empathy in relation to the family of Patrick Cronin for [his] actions'.

28 As we have said, the applicant is trained in Muay Thai. The judge made the following observations as to the relevance of that training:

One of the activities you became interested in was the martial art of Muay Thai. You had trained for some period of time and achieved some rank of proficiency in that martial art. The significant point that needs to be made about that activity is that in your training you were taught that such skill as you had was only to be used in self-defence and not for the purpose of behaving aggressively. On the night of 16 April 2016, it is significant you knew better but failed to heed that instruction which is an important part of legitimate martial arts training.

29 The judge received 93 victim impact statements, from a broad range of Patrick Cronin's family, friends and associates. It is plain that Patrick Cronin was much loved and admired, and that his death has caused great suffering and grief.

30 In arriving at a just sentence, one of the factors to which the judge was required to give proper weight - together with a constellation of other factors - was the impact of the applicant's offence on victims.[8]

31 In the course of the plea hearing, the prosecution submitted that the applicant's offence fell into the 'mid-range' of seriousness for the crime of manslaughter. And in this Court, counsel for the applicant initially contended that the applicant's offending fell toward the bottom end of the scale of seriousness for the crime of manslaughter. But as was recently observed by Maxwell P and Hargrave JA in Weybury (albeit in the context of the offence of dangerous driving causing death):[9]

... it is in our opinion not helpful to debate whether, on the spectrum of cases from least to most serious, the offending in this case falls within a particular category such as 'mid-range' or 'bottom of the high-range' or other like classifications. Such an approach carries the risk that it will attract reference to current sentencing practices for offences which have previously been categorised in a particular range, whatever the circumstances of the offending and the mitigating circumstances. Such an approach may lead to sentencing judges unconsciously limiting their instinctive synthesis of a particular case by sentences in other cases classified within a particular range, rather than considering the individual facts of comparable cases.

In our opinion, it is best to avoid categorising cases as falling within a particular 'range' and, instead, for sentencing judges to have regard to relevantly comparable, and current, cases as 'yardsticks'. This approach involves considering where a case fits on the spectrum of offending, and is the preferable way for sentencing judges to have regard to current sentencing practices as a factor in the instinctive synthesis.

32 In that case, Priest JA also said:[10]

Beyond saying that the maximum penalty must be reserved for cases in the 'worst category', and that a sentencing judge in every case is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category (properly so called), in my view, attempts to shoehorn particular cases into categories of seriousness such as 'upper', 'middle' or 'lower', or to characterise moral culpability as 'high' (or 'very high'), 'middle range' or 'low', are often calculated to obscure the essential nature of the sentencing task.

33 In our opinion, there were a number of objectively serious features of the applicant's offending. At the time that he was forcefully punched to the head, Patrick Cronin posed no threat to the applicant. Indeed, he was trying to pacify the situation when the applicant - who had been standing back observing the melee for about a minute - suddenly launched forward and threw a number of head-high punches in his and Hopkins' direction. Moreover, given that the attack came from outside his field of vision, Patrick Cronin had no chance whatsoever of defending himself from the punch that killed him. In our view, it matters not - as counsel for the applicant at one point seemed to submit - that the applicant may not have intended to strike Mr Cronin rather than his friend. Quite apart from his training, the applicant must have realised that throwing a punch or punches towards the head of another or others was inherently dangerous.

34 That said, we do not doubt the applicant's remorse. Nor do we doubt that he previously has been of good character and that his prospects of rehabilitation are also good. But the fact remains that an innocent life was lost as a result of his resort to violence, in an environment where there is widespread public concern about violence perpetrated by young men in circumstances such as those present in this case. Quite plainly, general deterrence, denunciation and just punishment were all important factors which needed to be given significant weight in the sentencing synthesis.

35 As we have said, counsel for the applicant ultimately relied solely on the ground that the sentence was manifestly excessive. Appellate intervention on that ground is not warranted, however, unless having regard to all of the relevant sentencing factors the appellate court is 'driven to conclude that there must have been some misapplication of principle'.[11] It is only if the sentence is wholly outside the range of those open in the proper exercise of the sentencing discretion that appellate intervention is justified. As Young CJ observed in Kenny:[12]

In order to make good a submission that the sentences passed are excessive, it is essential for an applicant to show that the sentences are manifestly and not merely arguably excessive. Such a submission is not one which is capable of a great deal of elaboration. As the majority of the court said in Williscroft's Case,[13] to which reference has been made during the course of argument, the imposition of a sentence is in the last resort an individual sentencing judge's instinctive synthesis of the various factors involved, and when application is made to this court for leave to appeal on the ground that a sentence imposed in the court below is excessive, the approach of the members of this court must, I think, necessarily be the same. Each member of the court instinctively synthesises the relevant considerations and, having done so, considers whether in all the circumstances he is able to say that the sentence imposed is so obviously excessive that there must have been some miscarriage in the trial Judge's discretion.

36 In our view, when all of the particular features of the applicant's case are properly synthesised, the head sentence and the non-parole period must be seen to be well within the range of those open in the proper exercise of the sentencing discretion. Given that is so, the contention that the sentence is manifestly excessive is incapable of being sustained.

[1] By virtue of s 5 of the Crimes Act 1958, the maximum sentence is 20 years' imprisonment.

[2] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to be imprisoned for 10 years with a non-parole period of seven years.

[3] See Criminal Procedure Act 2009, s 315(1).

[4] See Criminal Procedure Act 2009, s 315(2).

1. The Learned Trial Judge erred in failing to find that this crime should have been categorised as falling in the lowest possible category of 'unlawful and dangerous act' manslaughter.

2. The Learned Trial Judge erred in finding that specific deterrence was important.

[6] Re Lee [2016] VSC 343, [29]-[31] (Emerton J).

[7] His date of birth is 21 February 1983.

[8] Sentencing Act 1991, s 5(2)(daa).

[9] DPP v Weybury (2018) 84 MVR 153, 165 [33]-[34] ('Weybury'). See also Walsh v The Queen [2018] VSCA 334, [28] (Priest and Weinberg JJA) ('Walsh').

[10] Ibid, 170-71 [54] (citations omitted). See also Walsh, [29].

[11] See R v Pham [2015] HCA 39; (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); DPP v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 349 ALR 37, 50 [59] (Kiefel CJ, Bell and Keane JJ). See also DPP v Zhuang (2015) 250 A Crim R 282, 295-300 [39]-[49].

[12] R v Kenny (Unreported, 2 October 1978, Vic, CCA). See also DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127] (Ashley, Redlich and Weinberg JJA).

[13] R v Williscroft [1975] VicRp 27; [1975] VR 292, 300.