R v Brooks [2011] VSC 211

3 As the day progressed, you became more intoxicated and increasingly aggressive. You argued with your girlfriend. You were verbally abusive and aggressive to Mr Gutowski and argued with a neighbour about complaints that had previously been made to the body corporate about noise. Much later that day, at approximately 9.00pm, you and Mr Anderson left the flat and Mr Gutowski remained at home. You and Mr Anderson then returned between 9.30 and 10.00 with another cask of wine, and all three of you sat around drinking.

4 You continued your aggressive demeanour and, at approximately 11.00pm, neighbours reported hearing loud noises coming from the flat. A male voice could be heard repeatedly yelling out, "You calling me a cunt", and neighbours later told police that they could hear loud thuds through the walls.

5 The Crown contend that it is at this time that you began physically assaulting Mr Gutowski in the hallway of the flat near the bathroom door. This assault caused Mr Gutowski to fall to the floor, and you repeatedly used your feet to forcefully kick him in the abdominal region. Mr Gutowski was also bleeding from a cut to his head and other abrasions on his face. One neighbour reported that this assault appeared to last for approximately 30 to 40 minutes and was of a frightening nature.

6 The assault on Mr Gutowski rendered him unconscious and resulted in serious injuries which ultimately led to his death. You and Mr Anderson left Mr Gutowski lying on the bathroom floor, unconscious, without rendering any assistance to him. After the assault, you went to bed and Mr Anderson fell asleep on the couch. The next morning, it became apparent that Mr Gutowski was dead. He had remained on the bathroom floor in the same location. In the loungeroom, the two of you discussed the assault on Mr Gutowski and the fact that he was dead, and you began drinking the cask wine left over from the previous night.

7 You then retrieved a pair of runners that you had worn the previous night and gave them to Mr Anderson, telling him to dispose of them. There were bloodstains across the top of those shoes, and Mr Anderson took them and dumped them over a fence and into the backyard of a nearby property. He then returned to the flat and you and he continued drinking in the loungeroom.

8 At about 9.00am on that day, 9 March 2010, you and Mr Anderson obtained some money from the local parish priest and, with that money, you called your brother Richard and told him that Mr Anderson had told you that you had killed Andrew last night, but that you had no recollection of it. You told him that there had been a fight in the hallway and that you had left Mr Gutowski there and went to bed, and that when you woke up the next morning, Mr Gutowski was still in the hallway and there was blood everywhere, and you told your brother that you would go back and clean the scene and dump the body. You also asked your brother to transfer money into your bank account. After that call, you and Mr Anderson went back to the flat, sat in the loungeroom and drank the remainder of the cask wine.

9 Your brother, Mr Richard Brooks, contacted a friend who was a police officer and reported the incident. Officers from the Flemington Police Station attended at your flat and there located Mr Gutowski lying in the bathroom doorway of the flat. You and Mr Anderson were immediately arrested. You were interviewed later that day and initially lied to the police and told them that you found Mr Gutowski dead in the bathroom doorway when you returned home. You denied having any altercation with Mr Gutowski and said that he had probably fallen over and hit his head due to excessive drinking, and you later told police that you could not remember having a physical fight with him as you were heavily intoxicated, but admitted to having a verbal argument with him and accepted that it appeared that you had killed Mr Gutowski. You also admitted that Mr Anderson had disposed of your shoes because they had blood on them.

10 Andrew Gutowski was examined by Dr Sarah Parsons, forensic pathologist, and she determined that the cause of death was blunt force abdominal injuries. Mr Gutowski's spleen was ruptured, and 2.1 litres of blood located in his abdominal cavity. In addition to these internal injuries, Mr Gutowski had multiple areas of recent bruising over his entire body. He had also suffered multiple fractured ribs, a fractured sternum and bruising to his heart. Dr Parsons, the pathologist, determined that there were multiple bruisings on multiple planes, indicative of a large number of blows or trauma, but that she could not, in some instances, exclude that the bruising would have occurred from Mr Gutowski hitting or bumping into walls or falling over. The lacerations to the face which he sustained were inflicted by moderate force, but in Dr Parsons' opinion, the bruising to the abdomen was inflicted by low level force, while the lacerations to the mesentery were the result of significant blunt force to the abdomen.

11 The crime of manslaughter carries a maximum penalty of 20 years' imprisonment. The Crown contend here that by reason of your assault upon Andrew Gutowski, you have committed an unlawful and dangerous act, in circumstances where a reasonable person in your position would have realised that you were exposing another to an appreciable risk of serious injury. At the time of his death, Mr Gutowski was 43 years old. He had been your friend since 2001, when you met in a boarding house; and you had shared the flat at Railway Place since 2006. Mr Gutowski had no relatives in Australia, his mother having predeceased him. Relatives in Poland have been advised of his death and of this proceeding, but declined to make Victim Impact Statements.

12 You are 31 years old and have admitted approximately 74 convictions and appearances dating from April 1997 to January 2010. Your previous dispositions have included sentences of imprisonment wholly suspended x 6 (3 of which have been breached); intensive corrections orders x 2; a community based order and a sentence of imprisonment of four months and 2 sentences of imprisonment of under 7 days equalling time served. Since 9 March 2010 when you went into custody in respect of this offence, you have served two sentences of imprisonment of six months each for offences which include a further breach of suspended sentence and intensive corrections order, assault by kicking, recklessly causing injury and public transport offences. Your prior offences have included numerous thefts, assault, assault with a weapon x 2, handling stolen property and convictions relating to possession and use of illicit substances.

13 Your counsel, Ms Gwynn, detailed what she described as your tragic lifestyle. Your biological mother was a deaf mute who suffered from schizophrenia and was accommodated in an institution. You were removed from her care as a baby and adopted into the family of Harman and Janet Brooks, who had a history of adopting children. You were fortunately adopted into a loving, supportive family and you became particularly close to your father, Harman. You were treated by your parents as their biological child. They had three other children and you were the youngest by 16 years. You were educated to Year 11 at Ivanhoe Grammar and you were said to be an average student, but an outstanding sportsman. Your particular interest was in the sport of walking. You became a member of the Australian Institute of Sport and you participated in walking events in Australia and internationally, culminating in representing Australia in Spain at the age of 15.

14 You had a bright sporting future, and in 1995 you were preparing for the Olympic Games in Atlanta when you complained of a sore knee which necessitated an operation. As a consequence, you contracted golden staph, which put an end to your competitive walking. In 1991, your father had been involved in a car accident, which led to his paraplegia. In 1997, he died, having spent the last 11 months of his life in hospital, and it was said that you never recovered from either of these events: the abrupt cessation of your sporting career and the untimely death of your father. Ms Gwynn said that at the age of 17, you stopped functioning and took respite in drugs and alcohol use. Your life then became an endless cycle of drug abuse, overdose and hospitalisation. You had suffered epilepsy as a child and continue to do so, and have suffered schizophrenia/psychosis said to be mainly drug-induced. Indeed, a neuropsychological report by Dr Robert Bourke was tendered in evidence as Exhibit "2". In that report, Dr Bourke details your antecedents, which I accept. You first consumed alcohol at the age of 14 and you reported to him a daily consumption up to over a cask of wine per day over the eight years before March 2010. You first used cannabis at the age of 14 and described a pattern of daily use from the ages of 18 again until your incarceration in March 2010. Upon leaving school, you had some work, including working with your brother, Richard, but essentially you have either been not well enough or too drug or alcohol-affected to participate in any permanent employment.

15 You had also been prescribed a range of benzodiazepams and reported to Dr Bourke periodic use of heroin and amphetamines. He described you as a person of average intelligence. He reported that you had been repeatedly diagnosed with a psychotic illness and you were initially admitted to the Austin Hospital in April 2002 for the treatment of a drug-induced psychosis/amphetamine-induced psychotic disorder. You were noted to have had repeated admissions to various hospitals for the treatment of drug-induced psychotic episodes, you had come to the attention of various CAT teams and had several admissions to residential drug detoxification facilities. At the time of this offence, you were in receipt of a disability support pension by reason of your epilepsy and schizophrenia.

16 A summary of various hospital admissions was tendered on your behalf as Exhibit "1". It appears from that document that your life has been a cycle of excessive alcohol use and abuse, drug use and violence, either as a perpetrator or victim, and this profile, to a certain extent, is reflected in your prior criminal history and previous dispositions.

17 The manslaughter of Andrew Gutowski must be placed in the context of the lifestyle you and he were living at that time. It appears that it was your habit to rise in the morning, gather together money to purchase alcohol, buy a cask of wine, drink it and then seek to put together more money to buy more alcohol. Indeed, it was put by Ms Gwynn that for $8.50, you could purchase four litres of wine, and on this day it appears that up to four casks of wine, presumably of four litres each, were purchased. It appears that this was the pattern of life in the flat in which you lived with Mr Anderson and Mr Gutowski, and that it was also the feature of life in the flat that there would be various fights and arguments, but in the past, these arguments appear to have been resolved and passed between you, and the friendship resumed. What made this argument on this day different is not known. You have little or no memory of the events, and it is not disputed that that amnesia is genuine. A neighbour heard two people arguing, and it appears that that argument went for up to 30 minutes. The deceased was heavily intoxicated, the pathologist's report assessing his blood alcohol at 0.28%, and indeed you must have been heavily intoxicated as well. Indeed, it appears from the depositions that the police saw you in the street at 8.50pm and they described you as intoxicated, with slightly slurred speech, but otherwise coherent, and you told the police, at question 452, "I would've been pretty pissed over the duration of the day", and again at question 742, "We were pissing on pretty hard".[1] There is no real issue that whatever transpired between you and Mr Gutowski was something that arose spontaneously and on the spur of the moment, and was not a premeditated act. You were, after all, friends; you lived together, you had a history of drinking together and, it appears, arguing together, but there is nothing in the depositions which suggests that there was any ongoing animosity or bitterness between the two of you. Such arguments and disturbances appear to be a feature of regular alcohol and possibly drug consumption by both of you.

18 So it is that, although Mr Gutowski's death was brought about as a result of an argument, there is no evidence as to what caused the argument or when it was that you appeared to get the upper hand, but we do know that the fight did get out of hand and that Mr Gutowski suffered a severe and sustained beating.

19 Mr Gutowski was an alcoholic. He suffered from cirrhosis of the liver and other significant ailments, and in these circumstances he would bleed easily and more readily. Ms Gwynn submitted, therefore, that the presence of significant blood in the abdomen was not necessarily indicative of the nature of the attack upon him. Indeed, the injuries sustained by Mr Gutowski were not life-threatening had there been medical intervention.

20 Your counsel further submitted that the attack upon Mr Gutowski did not involve a weapon. The duration of the actual attack could not be ascertained, and the fact that Mr Gutowski had injuries to his hands suggested that this was a physical altercation between two men at the outset and not a situation where Mr Gutowski was not able to defend himself initially. Ms Gwynn also submitted that the abdominal injuries indicated the assault was directed principally to the stomach region. While none of these matters are disputed, nonetheless this was a severe and sustained assault in totality one of considerable force.

21 Ms Gwynn submitted that your prior criminal history was street level offending under the influence of drugs or alcohol and that your earlier offending is in a category far removed from this present offence, which I accept. Your previous longest disposition had been a four month period of imprisonment, but you have now been almost 14 months in custody, which has been your longest period of imprisonment, and for some reason you have served it, up until recently, in maximum security at Barwon. You are presently housed at Port Phillip. At Barwon Prison, you worked in the kitchen and started a computer course and worked at toy making. You have put on 30 kilograms in weight. Since moving to Port Phillip, you have had no access to drug and alcohol programs, but you propose to engage in them. Your urine screens have been clear and you have consistently taken your medication, Prozac, Epilim, which relates to your epilepsy, and Respiradon, an antipsychotic. You acknowledge to Dr Bourke feeling much clearer since you have been incarcerated and have abstained from substance use during the past year. You continue to be supported by your family and it is anticipated that they will assist you with accommodation when you are finally released into the community. Your relationship with your mother, who is presently suffering from cancer and unable to physically visit you, is said to have improved; you are presently in constant telephone contact with her.

22 In sentencing you, I take into account your plea of guilty offered prior to the committal and I give you a discount for it. Ms Gwynn submitted that the discount should be considerable, not only because of the early stage that the plea was indicated and because it is indicative of your remorse, but also because you could have run a trial relying upon your epileptic condition and laid the blame on Alan Anderson, who was also present in the flat and had two injuries on him. I acknowledge that, by your plea, you have foregone whatever prospect you had of acquittal and you have facilitated the interests of justice, saved the community the cost of a trial and the witnesses the ordeal of one. I take into account also that you are remorseful for your conduct and that, by reason of your conduct, you have caused the untimely death of your friend.

23 Against these matters stand the nature and gravity of the offence here committed, the need to pass a sentence which will serve to punish you and act in denunciation of your conduct, and give due weight to general deterrence, so that like-minded members of the community, including those who drink excessively, will know that if they commit offences such as this, they can expect condign punishment.

24 Your counsel has submitted that, by reason of the salutary lesson of your being held in custody to date and what may be said to be the sobering effect it has had upon you, specific deterrence may be given less weight. I accept that if you remain compliant with your medication and sober, and with the continued support of your family, the likelihood of your re-offending in this manner is considerably reduced and that your prospects for rehabilitation are not without hope and may well be achievable.

25 Mr Rose SC, who appeared on behalf of the Crown, submitted that a sentence in the range of six to seven years as a head sentence, with a non-parole period of three to four years, would be appropriate, given the early plea of guilty, the friendship between you and Mr Gutowski, the amount of alcohol which was consumed prior to this offence and your genuine amnesia, which meant that little was known about the actual occurrence, all of which made this a case which he submitted called for "a more merciful sentence." Mr Rose SC fixed upon the figures as submitted because he said it appeared to be the middle range. Mr Rose SC submitted, as I think Ms Gwynn conceded, that the principles of Verdins' case were not applicable here. There is no evidence that you were psychotic at the time of the offence and it is speculative whether you had an epileptic seizure, although you told the police in your record of interview that it was possible but that you had taken your medication that day. Ms Gwynn submitted that the range as posed by the Crown reflected the mystery of what occurred in the sense that we do not know exactly what happened, and in the context where significantly more weight should be given to a plea of guilty than in other circumstances, and the evidence of Dr Parsons in terms of the weight to be given to the injuries inflicted on Mr Gutowski and the fact that the direction of any attack was towards the stomach region and that this was clearly an altercation that took a turn for the worse were all matters which justified the range as proposed.

26 Mr Rose SC tendered the Sentence Advisory Council Sentencing Snapshot Number 85 (June 2009) in regards to the crime of manslaughter. It confirmed that the length of sentences for this offence is variable and concluded that the most common sentence of imprisonment is nine years with a non-parole period of six years. Statistical analysis is helpful and may be regarded as a useful tool but each case is unique, and although s 5(2)(b) of the Sentencing Act requires a sentencing Court to have regard to current sentencing practices, regard must also be had to the nature and gravity of the offending conduct and your culpability and degree of responsibility. That you were intoxicated, and heavily so by reason of your own admission, does not reduce your moral culpability or responsibility for the offence, although I accept the comments of Dr Bourke in his report that substance intoxication can have adverse effects on a person's cognitive functioning and could potentially lead to a loss of impulse control. But this was a situation where you continued to drink steadily throughout the day, as you admitted in your record of interview, and this appeared to be how you functioned on a daily basis, as indeed did Mr Gutowski. Although one may have sympathy for a person caught up in that alcohol-ridden lifestyle, it does not, in my view, warrant less than an appropriate sentence. I accept, however, that this case of manslaughter fits in the mid to lower range; it did not involve the use of a weapon and it did involve an assault where both persons were heavily intoxicated.

27 General deterrence, the need to pass a sentence which serves to punish you and act in denunciation of your conduct and takes into account the nature and gravity of the offence here committed are also considerations which require appropriate weight. Your conduct resulted in the loss of life by reason of a sustained physical assault, even if the actual physical assault be for considerably less than the 30 minutes that the argument was heard to endure, and it included kicking with such force as to fracture at least two ribs.

28 Although, as expressed to counsel, this is a sad and tragic case, I cannot accede to Mr Rose's submission that because of your high alcohol consumption and the fact that you had killed a friend, that for these reasons a more merciful sentence should be imposed. Although justice should always be tempered with mercy, these features of your case are, sadly, not uncommon. I accept, in sentencing you, however, that specific deterrence may carry less weight in that you are not likely to re-offend if you remain sober and appropriately medicated and, as stated previously, I accept that if you remain sober and complaint with your medication and with the continued support of your family, your rehabilitation is achievable.

29 In sentencing you, I take into account your age, your plea of guilty and the time at which it was entered, and give you a discount for it. I take into account your remorse. I take into account also the downward spiral of your life from your teenage years to March 2010 by reason of your alcohol and substance abuse and schizophrenia. In short, I take into account all matters which go in your favour.

30 I have had regard, according to the principles of R v Renzella,[2] the twelve months you have spent in custody serving the two sentences of imprisonment since you were remanded for this offence and I take that twelve months into account in fixing the sentence that I do. Accordingly, for the crime of manslaughter, you are convicted and sentenced to eight years' imprisonment and I propose to order that you serve a period of five years before becoming eligible for parole. I declare that you have already served by way of pre-sentence detention a period of 76 days and I declare that, pursuant to s 6AAA, but for your plea of guilty I would have sentenced you to ten years' imprisonment with a non-parole period of seven years. I fix that period of non-parole because in my view it is appropriate in all the circumstances and the time of parole will render your rehabilitation more likely.

[2] [1999] VSCA 85.