R v Ashman [2020] VSC 105

2 The maximum penalty for the offence of manslaughter is 20 years' imprisonment. It is a category 2 offence pursuant to s 3 of the Sentencing Act 1991 (Vic).

3 On 23 December 2018 around 10.30pm, Mr Wright and his girlfriend Georgina Neale were returning to the unit in which he was temporarily residing on Civic Parade, Altona.

4 The address at Civic Parade consists of two units. Mr Wright lived in the rear unit, located behind the front unit where your ex-partner, Vanessa Chumbley, lived with your two daughters and step-daughter. You regularly stayed at the unit, and had been there with the three girls just prior to your offending.

5 The units share a driveway and Mr Wright had to pass the Chumbley's unit to get to his residence. On this occasion, dogs belonging to the Chumbley's started barking as Mr Wright and Ms Neale walked past and Mr Wright yelled at them to 'shut up' before going inside his unit.

6 Upon hearing Mr Wright yell, your step-daughter Jemma Chumbley yelled, 'Stop screaming at the dogs, you're scaring my sisters. They're meant to bark. Look we all have to live together. I don't want to be scared in my own home.' She grabbed a baseball bat and went onto the driveway and walked to Mr Wright's unit to confront him. Mr Wright stood behind the wire security door at the front of his unit, where he remained for the entire incident.

7 Mr Wright and Jemma had a verbal altercation, during which Mr Wright yelled 'I'm going to get your house run through, I know when you're home alone' and saying he would get men there in 10 minutes. As the verbal altercation continued, you and your two daughters came outside, and went to Mr Wright's unit.

8 When you got there, you stepped towards Jemma and said 'Get away from that junkie, he's not worth it'. Mr Wright said 'I do ice, it's not as bad as weed'. You responded, 'You are pathetic and disgusting and your whole life is based on drugs'.

9 You then put your hand on Jemma, as if to guide her back to the Chumbley's unit. Mr Wright called out 'Look at you, you paedophile.' At this point, Jemma noticed you were holding something under your arm. You had a 12‑gauge, sawn-off shotgun. Jemma only realised you had a firearm when you dropped it to your side and she heard it snap shut.

10 You then held the shotgun across your body. The prosecution contends that the purpose of this act was to intimidate Mr Wright. This immediately prompted Jemma to grab the shotgun, placing one hand on the barrel and another hand on the stock near the trigger. Jemma attempted to remove the shotgun from you by pushing and shoving you with all of her body weight. You held the shotgun with your left hand on the barrel and your right hand where the trigger was located.

11 Jemma tried to push you backwards and push the shotgun down in an attempt to break your grip. You pushed back towards Jemma to try to shrug her off. She was unable to wrest the gun from you as you were too strong.

12 During this pushing and pulling, Jemma yelled at Mr Wright to go inside and shut his door. Mr Wright replied 'Why should I shut my door?' and did not move. It is not clear whether he understood what was occurring.

13 During this physical struggle, the gun went off. Jemma immediately dropped to the ground. The shot went through the security door of Mr Wright's unit and hit him in the chest. The prosecution does not allege you intentionally pulled the trigger or pointed the gun at Mr Wright.

14 Mr Wright slammed the solid front door shut and fell to the floor. Shortly after, Ms Neale, who was still inside Mr Wright's unit at the time, found him unresponsive and lying in a pool of blood behind the door.

15 Ms Neale left the unit and went to Westona railway station to seek assistance. A man assisted her in pushing the emergency communications system on the platform, and when there was no reply, boarded a train with her to Laverton where they approached two Protective Services Officers.

16 After you shot Mr Wright, you handed Jemma a duffle bag believed to contain the shotgun. Jemma placed the bag in the footwell of her car before driving you and your two daughters to her boyfriend's home in Point Cook, who was away with his family at the time.

17 When you arrived at the Point Cook address, the duffle bag containing the shotgun was still in Jemma's car. This was the last time the bag was seen and the firearm has never been recovered.

18 On 24 December 2018 at approximately 2.30am, police attended Mr Wright's address and found him lying in the doorway of the unit. He was not breathing.

19 Ballistics expert Sergeant Alan Pringle attended the scene and observed the following:

(a) an 85mm x 50mm hole through the screen door caused by a passage of shot from the outside in;

(b) two areas of fragment damage on the timber front door; and

(c) an area of shot fragment damage to the ceiling north of the front doorway, the spread of which aligned approximately midline of the front door.

20 On 24 December 2018 at 12.00pm, you were arrested at Ms Ashman's house and taken into custody. You made a partial 'no comment' record of interview, during which you denied killing Mr Wright, and were charged with murder.

21 On 5 August 2019, a committal proceeding commenced. During cross-examination by the defence, Jemma gave evidence that the shot had been discharged in the course of your struggle with her over the shotgun.

22 On 6 August 2019, you made an offer to plead guilty to the charge of manslaughter, which was accepted by the prosecution.

23 On 24 December 2018, forensic pathologist Dr Victoria Francis conducted a post-mortem examination on Mr Wright. Dr Francis determined the cause of death to be a gunshot wound to the chest. Dr Francis observed that the entry injury was caused by a single passage of shot discharged from a 12-gauge shotgun, which tracked from Mr Wright's left chest towards his spine.

24 Dwayne James Wright was born on 20 October 1992, and was therefore 26 years old at the time of his death. He had five siblings. From the age of three and a half years old, he was placed in foster care with his sister. They lived in Belmont with their permanent care parents Keith and Anne Bainbridge and their two adopted children.

25 Mr Wright had global developmental delay and was on the Autism Spectrum. At the time of his death, he was engaged with Latitude Youth Services, a service which provides support for youths that are homeless. The service helped Mr Wright secure transitional housing, being the unit on Civic Parade, as he awaited more permanent accommodation.

26 In the days leading up to his death, Mr Wright spent time with Mr and Mrs Bainbridge and attended a Christmas party with Latitude Youth Services. He is described by workers at the service as being a polite, respectful and very engaging young person.

27 I received three Victim Impact Statements, all of which I have carefully read and considered. These statements express the tragic impact of your offending.

28 Keith Bainbridge, permanent care father of Mr Wright, describes how his son's death has shattered his dreams of spending time together outdoors and sharing hobbies such as woodwork and house maintenance.

29 Mr Bainbridge explains how his son's death has reignited the fear he felt each time one of his work colleagues had been held up in a bank robbery. He talks about how all shooting deaths now remind him of his son's senseless death.

30 Anne Bainbridge, Mr Wright's permanent care mother, explains how he was her son and a part of her family. She talks of how she hoped that she and Mr Bainbridge would become grandparents to her son's children and share family life together; a hope that has now diminished with his death.

31 Ms Bainbridge explains how her son was killed on her birthday, meaning she will now share all her remaining birthdays with the death of her son.

32 Luke Bainbridge, brother of Mr Wright, explains the devastating effect of his brother's death on him. In an attempt to deal with this loss, Mr Bainbridge describes how he drank alcohol excessively, leading to him being hospitalised and requiring time in rehabilitation.

33 Mr Bainbridge describes how his sadness and anger increases the more he thinks about his brother's death, particularly the fact that it resulted from such a petty and trivial argument. Mr Bainbridge explains how he will never know what his brother's future could have been, and this thought will haunt him for the rest of his days.

34 No sentence I will pass on you will take away the pain and suffering your actions in killing Mr Wright have caused his family and people close to him.

35 You were born on 4 July 1970, and are now 49 years old. You have an Aboriginal father and non-Aboriginal mother, and have always maintained solid and positive relationships with both parents. You also have a younger sister who is 46 years old.

36 You grew up in the Flemington area, and were expelled from two primary schools due to your violent behaviour. Your teen years and early adulthood were marked by cannabis use and offending behaviour. You report being exposed to a number of traumatic events in those years, including having your head stomped on by older youths on the train when you were 13 years old, and witnessing a close friend being shot by the police.

37 You left school partway through Year 11 and commenced an apprenticeship as a diesel mechanic. You continued to have further court appearances, and were sentenced to significant terms of imprisonment in April 1993, for intentionally causing serious injury and recklessly causing serious injury, and March 1994, for intentionally causing serious injury and making a threat to kill. You served six years and nine months in prison and were released on parole in 1999.

38 You made positive changes to your life following your release from prison. You commenced a long term relationship with Vanessa Chumbley and had two daughters. Vanessa Chumbley also has two other children who you raised and regard as your own. Whilst your relationship with Vanessa Chumbley was 'on and off' and you were separated at the time of the offending, you have reportedly always maintained a good co-parenting relationship.

39 In 1999, you secured stable employment as a labourer, working with your father on the wharfs. You maintained this job for approximately 20 years with the same company.

40 Over the last 15 years, your criminal offending has been limited and less frequent. You appeared in the Magistrates' Court in 2002, 2010 and 2016. On each occasion, your offending was dealt with by way of conviction and fine. I acknowledge these instances can be distinguished from the more frequent and serious offending in your past.

41 Your circumstances were challenged in 2018, following the passing of your father. You report being devastated by his death, as you were extremely close and had worked alongside each other on the wharfs for almost 20 years. This grief was compounded by the loss of your cousin who overdosed a few weeks earlier and your uncle, who died a few weeks after your father.

42 Your grief resulted in your relapse into cannabis use, and you began smoking between 4-6 grams per day.

43 The Court received a report authored by clinical psychologist Carla Lechner, dated 25 October 2019. You reported to Ms Lechner that, at the time of the offending, you were acting to protect your family from a perceived threat of sexual assault. Ms Lechner opined that traumatic events in your history, as noted above, led to a high level of anxiety and post-trauma symptoms with an associated determination to protect yourself and your family.

44 Ms Lechner observed various psychological symptoms associated with the following diagnoses:

(a) Major Depressive Disorder, with a score in the extreme range on the Beck Depression Inventory;

(b) Post-Traumatic Stress Disorder, including hyper-vigilant and hyper-arousal related symptoms;

(c) Cannabis Use Disorder; and

(d) Adult Attention Deficit Hyperactive Disorder (ADHD), noting you have not been medicated for this condition since entering prison.

45 Ms Lechner observed that you are cognitively capable of reflective thinking, but easily overwhelmed by emotional facts and too much information, which tends to cloud your judgment and decision-making skills.

46 Ms Lechner suggested that you would likely benefit from a range of treatment services upon your release from custody including long-term trauma-informed psychotherapy, simple skills-based learning relating to mood management and information processing, and grief counselling, possibly with the assistance of an Aboriginal elder.

47 Ms Lechner opined that you currently possess a low risk of further violent offending, given your lack of recent involvement in violent offending and the circumstances of this offence. She added that this risk would be further minimised by addressing your history of trauma and associated symptoms of hyper-vigilance and hyper-arousal, as well as treatment for your ADHD condition.

48 The prosecution submits your offending falls within the lower end of the mid-range of seriousness of manslaughter cases. Whilst the prosecution does not propose you intentionally discharged the shotgun, it contends that your actions in producing a loaded firearm, snapping it shut, placing your hands on the barrel and engaging in a physical struggle over it, were extremely dangerous. Both parties agree that the evidence as to whether you knew the gun was loaded is neutral. In this regard, the prosecution refers to the following statement from Beach and Weinberg JJA in DPP v Osborn:

It is an old adage amongst gun enthusiasts that one should always be aware of the risk that a gun, which is thought to be unloaded, may in fact not be so. In other words, it should always be assumed, when handling any gun, that it may be loaded.[1]

49 As such, when you took hold of the firearm and walked to Mr Wright's unit, you should have assumed it may be loaded. The prosecution identifies your use of a sawn-off shotgun and the fact the offending was committed in the presence of your children as aggravating features. It is particularly worth emphasising that you had no business being in possession of a sawn-off shotgun in the first place.

50 The prosecution does not rely on your conduct following the offending as an aggravating factor. The evidence does not allow a conclusion that you knew Mr Wright had been shot. However, I do note that following the blast from your shotgun, you made no effort to establish whether Mr Wright was safe and fled a scene where a man had been shot as a result of your actions. The blast from a shotgun at close range is a fearsome and dangerous event. You must have known that it had left a hole in the wire security door, at about chest height, yet you did nothing except leave.

51 Your counsel concedes you acted unlawfully and dangerously, but submits you were motivated by your strong resolve to protect your daughters. It is submitted, and I accept, that the following factors should be taken into account in assessing the seriousness of your offending, as well as your culpability:

(a) the absence of evidence of any awareness that the gun was loaded;

(b) the fact that you did not deliberately aim or point the firearm directly at Mr Wright;

(c) the inadvertent discharge of the firearm, without an intention to discharge;

(d) the fact that a single shot was fired;

(e) the fact that you made no threats before the firearm discharged and did not attempt to pursue Mr Wright after the discharge; and

(f) the absence of any intention to bring about harm.

52 Taking all matters into account and weighing them, I am of the opinion that the circumstances of the offence and the factors surrounding it lead to the conclusion that the offending is serious, and falls within the lower end of the mid-range for this type of crime.

53 In submissions on your culpability, your counsel likened the present case to the case of R v Russo.[2] In Russo, the victim had run over the accused's dog earlier in the day. The accused later approached the victim's car with a firearm, slipped on an eggplant and inadvertently shot the victim. Your counsel submits Russo is similar to your offending in that there was no deliberate pulling of the trigger, thereby lessening your moral culpability.

54 The prosecution submits that you have greater moral culpability than the accused in Russo. It noted that Mr Russo legally possessed the firearm on his farm property and slipped whilst holding a firearm he did not know was faulty. On the other hand, you had a sawn-off shotgun that you were not entitled to possess and engaged in a struggle over it with your step-daughter, which caused it to discharge and kill Mr Wright.

55 I accept that you did not mean to kill Mr Wright or cause him physical harm. I also note that there is no evidence you knew the gun was loaded. However, when you approached Mr Wright, you meant to intimidate and scare him. You were angry and in company with others, and in my opinion, it is very likely that you did scare him.

56 I find it hard to accept that you acted with any rational belief that your step-daughter was at risk of being sexually assaulted. There is no material put before me that provides any basis in fact for that assertion made to Ms Lechner. Mr Wright was behind his door, posing no immediate physical threat to you or your step daughter. On the other hand, you were both armed with significant weapons. Whilst I cannot conclude that Mr Wright knew you had a firearm in your possession, it must have been plain to him that Jemma was armed with a baseball bat. It is clear to me that the physicality of the confrontation was all one-sided, with Mr Wright being behind the closed door when the final events took place.

57 In light of these factors, I conclude that your level of culpability was in the mid-range.

58 You pleaded guilty to manslaughter on the second day of the committal hearing. While your counsel concedes that your plea of guilty was not made at the earliest available opportunity, you have nonetheless spared Mr Wright's family and relevant witnesses the ordeal of a contested trial. You have also saved the community time and money. I accept that your sentence should be discounted to reflect this.

59 Your counsel submits your plea of guilty is also indicative of genuine remorse. It is submitted that your conduct following the offending does not bear on the issue of remorse, as you were only aware Mr Wright had been shot when later informed by the police. Your counsel submits that your quick departure from the scene of the incident was motivated by your concern for your family's safety, in light of Mr Wright's comments that men were on their way to "run through" the Chumbley's unit. I find that explanation for your conduct following discharge of the shotgun to be somewhat unpersuasive. Nevertheless, I am prepared to conclude that you are now sorry for what happened.

60 The prosecution notes your prior convictions and expresses reservations about your rehabilitation. You have some very serious prior convictions for violence, although I note that the last one of these was many years ago now.

61 On the other hand, your counsel submits you have good prospects of rehabilitation, noting your mature age and limited offending over the years leading up to the death of Mr Wright. It is submitted that your extensive family support enhances your prospects for rehabilitation. You receive regular visits in remand from your family, and I have received seven character references from family members who describe you as an incredibly hard working, loving and generous person, although it might be observed that this spirit of generosity was not on display on the occasion you committed this offending. Your counsel contends that your family is your greatest achievement and their support will be critical to your reformation.

62 Further, your counsel refers to Ms Lechner's expert opinion that you currently present a low risk of further offending. As noted above, this opinion is based on the circumstances of the present case and the absence of prior offences of a similar nature. Your counsel also contends that the Chumbley's relocation from where the incident occurred and the stable circumstances of their new home will be conducive to your rehabilitation.

63 Your counsel notes that, since being remanded on 24 December 2018, you have worked in the gardens at the Melbourne Remand Centre and have been involved in a number of courses. He also reports that you have ceased using cannabis, with all relevant tests returning negative results.

64 In all the circumstances, I conclude that you have some prospects for rehabilitation, although I remain uncertain as to the degree of confidence. I do not consider that you are likely to re-offend again in a similar way after your release from prison.

65 Both parties submitted that sentences for manslaughter have increased significantly in recent years.[3] It may also be observed that due to the wide spectrum of how manslaughter offences can be committed, it is difficult to find examples of cases that are similar to the one before this Court.

66 The prosecution referred to the cases of DPP v Osborn[4] and DPP v Torun[5] as both providing reviews of manslaughter cases involving firearms. It also referenced R v Samaras[6] as a more recent example of manslaughter. However, I note that this case involved the deliberate pulling of the trigger, and as stated above, neither party submits that you intentionally discharged the shotgun in this case.

67 Your counsel provided the Court with a table of comparable cases, which it distinguished from the present case on the basis that they all involved positive findings that the firearm was intentionally discharged. It is submitted that Russo is the exception to these cases, and most comparable to the present case. Based on the facts stated above, in that case, the accused received a head sentence of five years with a non-parole period of two and a half years.

68 I have considered the circumstances of the offending identified in the cases provided and the sentences imposed. As previously raised, my opinion is that the present case can be distinguished from Russo in that you were armed with an illegal weapon and approached Mr Wright's flat with the firearm and the intention to confront and scare him. Your acts took place in the presence of, and complimentary to, the provocative and unnecessary actions of your step-daughter, who was also armed.

69 Your counsel submits that by placing your hand on Jemma's shoulder just before the shot was fired, you attempted to disengage from the altercation. The prosecution contends this act should not be construed as an attempt to desist, given your subsequent actions. I accept the submission of the prosecution in this regard. Your struggle with Jemma over the firearm suggests that you were not intent on walking away from the confrontation.

70 Your actions were fuelled with anger, involved carrying a firearm and were prompted by a completely pointless reason. This was, as so often is the case, a lethal combination that resulted in the untimely death of a young man.

General deterrence, denunciation and just punishment

71 The prosecution submits the purposes general deterrence, denunciation and just punishment are important considerations in sentencing you.

72 I agree that these factors are important to the sentencing equation in this case. The possession and use of illegal firearms to intimidate and frighten others must be deterred generally, especially as you acted in the heat of the moment when you were angry. The community expects that such behaviour must be firmly denounced as unacceptable.

Specific deterrence and protection of community

73 The prosecution submits these purposes are also important in sentencing you. Your counsel submits that your prior convictions should only have minimal relevance to the weight attached to specific deterrence. It refers to the fact that your past serious offending occurred 25 years ago.

74 In my opinion, these factors of special deterrence and community protection weigh less in the sentencing process in this case. I do not take the view that the sentence imposed on you calls for undue weight to be given to these factors.

75 Your actions resulted in the death of a vulnerable man who had not had the benefits in life that many people are lucky to experience. Life was, no doubt, hard for Mr Wright. It is not suggested you knew of his life's challenges, as had you known, you might have thought twice about confronting him. He did not in any way deserve to die, and did not expect to.

76 During the entire altercation, Mr Wright remained behind a door and did no more than engage in verbal abuse. Your actions in approaching him and employing the intimidation of a dangerous firearm which has never been recovered must be condemned as an unnecessary and gross overreaction to the circumstances that occurred between neighbours. You acted in a cowardly, provocative and aggressive manner towards an unarmed and innocent man which led to his death.

77 After considering all relevant factors and purposes, the sentence I will impose is a period of imprisonment for six years.

78 I order that you will serve four years before being eligible for parole.

79 I have imposed upon you a less severe sentence than I otherwise would have, because you have pleaded guilty to this offence. I declare that, but for your plea of guilty, I would have sentenced you to eight years' imprisonment with a non-parole period of six years.

80 I further declare you have served 437 days of pre-sentence detention, not including this day.

[1] [2018] VSCA 207, [100].

[2] [2018] VSC 395.

[3] Vincec v The Queen [2018] VSCA 18.

[4] [2018] VSCA 207.

[5] [2015] VSCA 15.

[6] [2019] VSC 120.