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[2008] VSCA 53
General information, not legal advice.
Court of Appeal (Vic)
2008-03-13
MAXWELL P, NEAVE JA and COLDREY AJA
Original judgment source is linked above.
CRIMINAL LAW - Sentencing - Appellant pleaded guilty to one count of manslaughter, by unlawful and dangerous act, after stabbing his brother - Whether judge incorrectly sentenced on the basis of murderous intent - Whether judge's treatment of appellant's state of mind appropriate - Whether sentence (9 years' imprisonment with a 6 year NPP) manifestly excessive - Appeal dismissed.
**1 I agree with Coldrey AJA. It was for the reasons which his Honour gives that I joined in the order dismissing the appeal.
3 On 31 March 2006, the appellant, Grant Daniel Casey, pleaded guilty in the Supreme Court to one count of manslaughter. The victim was the appellant's brother Martyn Casey and the incident giving rise to his death occurred on 14 November 2004.
4 At the time of the commission of this offence the appellant was aged 30 years, and at the time of sentencing he was 31 years of age.
5 The sentence imposed was 9 years and a period of 6 years was fixed before eligibility for parole. Pre-sentence detention was declared to be 515 days.
6 The maximum penalty for manslaughter is 20 years' imprisonment.
7 The appellant had some 16 previous convictions from five court appearances between May 1992 and July 2003. These included causing wilful damage, serious assault and possession of a knife in a public place.
8 On 3 August 2007 the appellant was granted leave to appeal. That appeal was on three grounds which are as follows:**
**9 Before this Court, counsel for the appellant indicated that ground 2 would not be pressed but sought to maintain grounds 1 and 3.
10 At the end of argument, this Court was unanimously of the view that neither of these grounds had been made out and, consequently, the appeal should be dismissed. It was indicated that reasons would be given at a later date. These are my reasons.
11 This is a case, in which, in my view, the sentencing judge dealt comprehensively with all of the facts and the sentencing principles applicable to them. I propose, therefore, to take the somewhat unusual step of attaching to this judgment his Honour's sentencing reasons.
12 The facts, which it was not suggested his Honour was not entitled to find, are set out in some detail in those reasons. In the circumstances it would be purposeless for me simply to repeat them in my own words. Nonetheless, it is helpful to make a brief reference to them so as to place the arguments advanced on behalf of the appellant in context.
13 What is clear is that, on the fatal evening, the appellant attended a barbecue at the home of his brother Martyn (the deceased). According to those present he was in a bad and angry mood and, after an argument in which he unsuccessfully demanded $20 which he claimed that the deceased owed him, he initiated a fight in which the deceased's nose was bloodied. Bystanders having separated the pair, the appellant left the scene with the words of his brother to the effect of: 'You're no good for nothing, you've lost your wife and kids', ringing in his ears.
14 This incident was followed by a second violent episode in which the appellant returned some 15 minutes later, armed with a wheel brace with which he intended to attack the deceased. A further fight ensued in which the appellant was disarmed, the wheel brace thrown over a fence, and he was forced to leave the property. As he was leaving, he yelled at the deceased that he was 'fucked' and that he was going to 'kill him'.
15 The appellant, apparently in a very angry state, returned to the family residence at Stoneview where he lived, and after obtaining a large knife from the kitchen, drove his car down the driveway and waited at the end of it for the deceased to pass by in his utility. The deceased was accompanied by his partner Kylie Bright and their 7 year old daughter Courtney. Also in the vehicle was a friend Mark Phillips.
16 After the utility, which was being driven by Ms Bright, passed the appellant's driveway, he set off in pursuit. He overtook the vehicle and drove deliberately in front of it forcing it off the road. Thereafter, the appellant alighted from his vehicle armed with the knife he had retrieved from the kitchen which had a 20 centimetre blade.
17 The evidence indicated that he 'bull-rushed' at the deceased and both men fell into the drain at the edge of the road wrestling with each other. In the course of the struggle the appellant stabbed the deceased in the chest. This wound was initially revealed when Mark Phillips succeeded in grabbing the appellant and pulling him off the deceased.
18 Upon post mortem examination, the deceased was found to have a 8 centimetre gaping wound to the upper chest which had penetrated 20 centimetres and into his right lung. This caused haemothorax and the deceased drowned in his own blood.
19 The appellant had also received a stab wound to the chest for which he was later treated at the Hamilton Base Hospital.
20 The appellant rendered some assistance at the scene and stated that he was sorry and had not meant things to go this far.
21 In the course of subsequent interviews with investigating police the appellant admitted that he was angry at the deceased's comments about his losing his family when he returned home to collect the knife. He claimed, however, that it was his intention to use the knife merely to slash the tyres of the utility and, having disabled it, to bash his brother with his fists.
22 In records of interview that were somewhat rambling and confused, the appellant maintained that, at no time, did he intend to use the knife to kill the deceased or inflict really serious injury upon him.
23 In the course of his sentencing remarks, the sentencing judge dealt with the nature and gravity of the offence. He did so in the following terms:**
**24 The gravamen of the argument advanced on behalf of the appellant was that it was impermissible, and a sentencing error, for the sentencing judge to have strayed into the territory of murderous intent and to have made any findings as to the likelihood or otherwise of that state of mind. Indeed, it was even suggested that the sentence imposed was infected by the sentencing judge's belief in the probable existence of a murderous intent.
26 It would have been quite artificial and unrealistic for the judge not to have dealt with the appellant's claim that the sole purpose of arming himself with the carving knife was to slash the tyres of a vehicle which, it is to be noted, he had already run off the road. This claim bordered on the fatuous but his Honour, having injected a dose of reality into the situation, indicated, as was the fact, that he was required to sentence the appellant on the basis of unlawful and dangerous act manslaughter and not on the basis of any murderous intent. This is expressly set out in the paragraphs to which I have referred, and there is no warrant whatsoever for this Court to go behind the clearly expressed sentencing approach enunciated by the sentencing judge.
27 Indeed, in my view, his Honour was entirely correct in characterising this offence as 'a serious case of homicide'. The stabbing was the third episode in a series of acts of escalating violence and the appellant may be regarded as very fortunate that the trial did not proceed on a count of murder.
28 Moreover, the circumstances in which the appellant trapped the deceased at the scene and the perpetration of a fatal attack in front of his partner and child were aggravating factors.
29 In my view, the sentencing judge's findings as to the nature and gravity of this offence were entirely appropriate and, accordingly, this ground must fail.
30 Ground 1, namely that the sentence was manifestly excessive, is, equally, not made out.
31 It is clear that the sentencing judge took into account the appellant's plea of guilty; his remorse; and his prospects of rehabilitation as demonstrated by his employment history. The fact that he was a model prisoner was also regarded as manifesting remorse and reflecting favourably on the appellant's prospects of rehabilitation. Additionally, the sentencing judge took into account the fact that the appellant was upset by the deceased's taunt about losing his wife and children.
32 On the other hand, the sentencing judge balanced, as he was required to do, the nature and gravity of the offence (to which I have already referred); the effect of the crime upon the deceased's partner and young daughter, which his Honour judged to be severe; the need for weight to be given to the element of specific deterrence given the appellant's prior convictions; and the need for denunciation and general deterrence.
33 I will not further detail each of the factors taken into account by the sentencing judge since they are fully set out in the reasons for sentence. It is sufficient to state that, having had regard to all of the matters considered by his Honour, I do not regard the sentence as being manifestly excessive.
34 I am reinforced in this view by the recent decision of this Court in R v AB (No 2)[1] which (inter alia) emphasises the significance, in determining an appropriate sentence, of the increase by Parliament of the maximum penalty for a specific offence. In the present case the sentencing judge was required to factor into the sentence imposed the increase in the maximum sentence for manslaughter from 15 to 20 years.
35 It is for these reasons that I joined in dismissing this appeal on 13 March 2008.**
CRIMINAL LAW - Sentencing - Manslaughter - Unlawful and dangerous act - Killed brother with knife during fight - Offence result of anger following verbal taunt - Total effective sentence of nine years with a non-parole period of six years.
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
36 Grant Daniel Casey you have pleaded guilty to killing your brother, Martyn Casey, and it falls to me to sentence you.
**37 On Sunday 14 November 2004 you spent much of the day at your mother's home, Stoneview, near Penshurst, where you were then living and working. You had your two children with you for the day for an access visit and you spent a good deal of the time with them playing. At about 5.00 p.m. you and your mother drove the children to Heywood to hand them back and then you and she returned to Stoneview.
38 Once there, you prepared the evening meal while your mother made a short visit to see other members of the family attending a barbecue at your brother Brendan's home in Penshurst. By the time she returned, you had eaten your meal and put aside a meal for her. Between about 7.15 and 7.30 p.m. you left her, telling her that you were going into town.
39 You drove to your brother Brendan's home. The barbecue was still underway and some of the other family members were still there, including the deceased and his partner, Kylie Bright. After parking your car outside the house in the street, you walked up the driveway in what seemed to those present to be a bad and angry mood.
40 You walked to the shed in which the barbecue was being conducted and demanded that the deceased pay you $20 which you said he owed you. He responded by telling you to "fuck off"; that he did not owe you any money. You then began to fight and wrestled with him until Brendan and the deceased's friend, Mark Phillips, moved in and separated the two of you. As they did, they saw that the deceased was bleeding from the nose. You then walked away towards your car and, as you left, the deceased yelled at you words to the effect of: "You're no good for nothing, you've lost your wife and kids." Then you drove away.
41 Some 15 minutes later you returned, got out of your car and walked back up the driveway carrying a steel wheel brace. Another fight developed between you and the deceased. But it too did not last very long. Your brother Brendan managed to take the wheel brace from you and threw it over the side fence of his property and he and others forced you to leave.
42 Plainly, however, you were very angry over what the deceased had said to you about losing your wife and children. You yelled at the deceased that he was "fucked" and that you were going to "kill him" and then you drove back to Stoneview where you obtained a large knife from the kitchen. Having done so, you drove your car down the driveway of Stoneview and waited at the end of it near the road for the deceased to pass by.
43 A short time later he did pass by. He and Kylie Bright drove by in Ms Bright's old utility headed for their home at Macarthur. They had their seven year old daughter, Courtney, and Mark Phillips with them in the cabin. Ms Bright was at the wheel. Mark Phillips sat beside her in the centre and the deceased sat closest to the passenger side door with Courtney on his lap.
44 Not long after passing Stoneview Ms Bright became aware that your car was parked in the Stoneview driveway and a short time later she looked in the rear vision mirror to see you following behind the utility. Unsure of what to do next, she slowed the utility, perhaps to allow you to pass, but as she did you drove your car deliberately in front of the utility at an angle, causing the near side front door of your car to collide with the offside front wing of the utility and forcing the utility off the road where it came to rest.
45 You stopped your car more or less beside the utility, got out through the driver's door of your car and moved around the rear of your car to the off side of the utility. At the same time, the deceased and Mark Phillips got out of the utility through the passenger's door and moved around the front of the utility towards the offside of the utility. Kylie Bright was still in the utility and saw you with the knife approaching the deceased and Mark Phillips. Then you "bull-rushed" at the deceased and he and you fell over in the drain at the edge of the road wrestling with each other. The fight was said to be "full on" with fists and legs going everywhere.
46 After a while, Mark Phillips succeeded in getting hold of you and pulled you off the deceased. Then he saw that the deceased had been stabbed in the chest with the knife and that blood was flowing from the wound. The deceased's eyes were rolling and he was moaning. You too had been wounded, although not as seriously. I infer that the deceased may have stabbed you after you stabbed him. So much is implied by the fact that you later told police that you lost control of the knife halfway through the incident and the fact that both your DNA and the deceased's DNA were found on the grip of the knife.
47 Mark Phillips grabbed the knife and threw it away towards the fence with his left hand while keeping you pinned down with his right hand. He also managed to pull out his mobile telephone and throw it to Kylie Bright and yelled at her to call the police. But there was no telephone signal at that point and so she gathered Courtney into the utility and drove off at speed to Penshurst to get assistance.
48 Mark Phillips called out to the deceased whether he was alright and when he replied to the effect that he was not good Mark Phillips climbed off you and moved over to the deceased to attend to him. The deceased was still conscious and Mark Phillips applied pressure to the wound to try to stem the flow of blood, and he talked to the deceased trying to make him retain consciousness until help arrived. But then blood and saliva began to flow from the deceased's mouth. You said that you were sorry and that you did not mean things to go this far.
49 Mark Phillips suspected that the deceased may have been swallowing his tongue and he forced his fingers into the deceased's mouth to check. As he felt pressure he called out to you that he believed that the deceased was still alive although he could feel no pulse. He turned the deceased onto his back and began CPR with ten breaths. There was no response. He gave another five breaths and began chest compressions. That caused the deceased to cough up some blood. But there was no other response. Mark Phillips persisted and called you to come and assist him. He showed you where to place your hands to perform chest compressions while he continued with the breathing. But you performed only three or four chest compressions before moving away, apparently unable to continue.
50 Meanwhile, Kylie Bright had reached Stoneview and telephoned the Hamilton Police Station on the landline and then started back on the drive to the scene. You in turn had driven to the property of your uncle, Greg Linke, which was nearby, and asked him to call an ambulance. You drove from his property back to the site and then collapsed at the rear of your car. He followed in his utility in order to assess the situation. After taking in the scene, he returned to his property and obtained water and towels for the deceased, and then brought them back to Mark Phillips who was still continuing alone with CPR, and he told Phillips that help was coming.
51 The police were next to arrive and one of the police officers assisted Mark Phillips to continue CPR [2] until ambulance officers arrived. Even after they had arrived, Mark Phillips continued with CPR, at their request, until they had determined that the deceased was dead.
52 Upon post mortem examination, the deceased was found to have died from an 8cm gaping wound to the upper chest which had penetrated 20cm to his right lung. The blade had passed through an internal mammary artery and the right lung causing haemothorax (ie. blood within the chest) which resulted in the deceased drowning in 1.6 litres of blood that flowed from the severed artery into his right pleural cavity.
53 On admission to the Hamilton Base Hospital you were found to have one stab wound to the chest for which your were treated.
54 You were interviewed while you were at the Hamilton Base Hospital on Monday, 15 November 2004 and again at length on 17 November 2004. You admitted in those interviews going to Brendan's home and having a dispute with the deceased on the two occasions to which I have referred. You said that you were angered by what the deceased had said to you about losing your wife and children, and you admitted that in that state of mind you had returned home to collect the knife. You claimed, however, that it was your intention to use the knife only to slash the tyres of the utility so as to disable it, and then to bash your brother with your fists, and you denied that you intended to use the knife to kill the deceased or to inflict really serious injury.**
55 The maximum penalty for the offence of manslaughter is 20 years' imprisonment and the most serious cases of manslaughter are liable to attract a penalty of 15 years' imprisonment or more. Such cases involve death caused by acts committed with intent to kill or inflict really serious injury, which, but for provocation, would be murder.[3] At the other end of the spectrum there are cases of accidental homicide the result of nothing more culpable than momentary neglect, which, depending upon the facts and circumstances, may attract a short sentence of imprisonment or perhaps even a non-custodial penalty. Between those extremes lies a broad range of cases, of both voluntary and involuntary acts of homicide in a wide spread of circumstances, attracting a range of penalties that is very wide indeed.
**56 Reference was made in the course of the plea to the matter of current sentencing practice and I was referred to a number of cases of unlawful and dangerous act manslaughter in which relatively short sentences of imprisonment have been imposed. Mr Brustman emphasised in particular the cases of R v Tipas,[4] in which a seventeen year old prisoner who stabbed a victim in a fight after being wounded by the victim some days before, was sentenced to six years imprisonment with a non-parole period of three years; R v Wanders,[5] in which a 65 year old prisoner who accidentally stabbed his drunken son-in-law during an argument was sentenced to five years and six months' imprisonment with a non-parole period of two and a half years; and R v Pollock,[6] in which a 20 year old prisoner who stabbed a victim in a fight after an argument was sentenced to seven years imprisonment with a four and a half year non-parole period.
57 I am grateful to Mr Brustman for the provision of that material. Recently, in R v Bangard,[7] Buchanan and Eames, JJ.A. commented on the role which current sentencing practices and statistics may play in formulating an appropriate sentence, and Eames, J.A. in particular stressed the utility of the kind of material which Mr Brustman has submitted as providing guidance in a broad way on the important question of consistency in sentencing.[8] Needless to say, I approach the matter accordingly.
58 At the same time, however, as Gleeson, C.J.[9] observed in R v Blacklidge,[10] it has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff.
59 The point is amply demonstrated by reference to some other cases of unlawful and dangerous act manslaughter referred to in Mr Brustman's table. For example, in R v Bellingham & Fenton,[11] a prisoner who had picked a fight with students in a pub and stabbed one of them in a fashion which was described as cowardly brutal and without provocation was sentenced to nine years' imprisonment with a non-parole period of seven years. Similarly, in R v Moore[12], a prisoner who in a fit of anger and aggression stabbed the victim in the heart was sentenced to nine years imprisonment with a non-parole period of seven years. In R v Mohammed,[13] a 26 year old Somali
59 Muslim slaughterman who stabbed a workmate to death because of the effects of religious and racial taunts was sentenced to 10 years imprisonment.
60 It should also be borne in mind, as indeed Buchanan, J.A. observed in R v Bangard,[14] that sentencing statistics of the kind submitted by Mr Brustman tend to show that the courts have not reacted appropriately to the increase in the maximum sentence for manslaughter from 15 years to 20 years (which was effected in 1997) by failing to value human life as highly as the legislature. That implies that, although current sentencing practices are a relevant sentencing consideration, they should not necessarily hold the same sway in cases of manslaughter as they do in some other cases.**
**61 You maintain that you did not intend to kill the deceased or inflict really serious injury. As already noted, you claim that your one purpose in fetching the knife and then carrying it with you as you pursued the deceased was to disable the utility by slashing its tyres. That strikes me, however, as an unlikely version of events. Given that you had only just threatened the deceased that he was "fucked" and that you were going to "kill him", and that you admit that you were angry - indeed "fuming" - and in that state of mind went and got the knife and pursued him with it, it presents to me as much more likely that you intended to do with the knife exactly what you had threatened to do.
62 Be that as it may, the Crown now accepts your plea of guilty to unlawful and dangerous act mansluaghter and, consequently, I am bound in effect to sentence you on the basis that you did not intend to kill or inflict really serious injury. Although there is no general requirement to sentence you on the view of the facts most favourable to you, facts which tell against you must be proved beyond reasonable doubt.[15] The result of the Crown's approach is that I cannot be satisfied beyond reasonable doubt that you had murderous intent.[16]
63 The offence of manslaughter to which you have pleaded guilty is nevertheless a serious case of homicide. Regardless of intent, the fact is that you took a large carving knife and pursued your brother with the purpose of bashing him, and you gave effect to that plan by "bull-rushing" him with the knife in your hand. At best you were courting the possibility of inflicting serious injury and, as most people are likely to view the matter, you were asking for a disaster. Your actions were, therefore, both unlawful and, from the perspective of a reasonable person, plainly very dangerous.[17]**
**64 I allow that you were upset by the deceased's taunt about losing your wife and children. I have already referred to the fact that your wife walked out on you with your elder child while pregnant with your younger child, and that you had real difficulties in obtaining access to your children and maintaining your relationship with them. Evidently, you were insulted and aggrieved that your brother should choose to hurt you by referring to something so sensitive. Yet as I see it you had very little justification for feeling aggrieved. You were the one who disrupted the barbecue by demanding the relatively trifling sum of $20. You were the one who accosted the deceased and gave him a bloody nose, apparently for no better reason than that he told you to "fuck off". You were the one who returned with a wheel brace, apparently for the purpose of assaulting the deceased even more effectively, and seemingly you would have used it on him if you had not been disarmed. After all that, it was hardly surprising that the deceased might react emotionally and intemperately and therefore say something calculated to hurt you. In truth you had only yourself to blame.
65 In any event, I regard your degree of culpability as high. Your attack on the deceased at the barbecue was unjustified, whether he owed you $20 or even $20,000, and your reaction to his response was insanely disproportional to any hurt that he could have inflicted on you. It beggars belief that a rational adult of 30 years of age could be so much affected by such a slight on his dignity that he would take a knife, force his brother's car off the road and pursue his brother with the knife in order, as you would have it, to bash him. It has not been suggested that you were suffering from any form of psychiatric or psychological disorder at the time of your offence. You are responsible for what occurred.**
**66 It was submitted on the plea that one factor to take into account in mitigation of penalty was that your mother and father and siblings are as much aggrieved by your incarceration as they are by the loss of the deceased. Your mother Clare-Maree Casey spoke in her victim impact statement and in her oral evidence of how the death of the deceased has broken her heart and the hearts of other members of the family. But, she said, they strive to move on and to create goodness and love for her small grandchildren and one another. They see Courtney on a regular basis and are in contact with Kylie Bright. In your mother's view, you have already suffered in prison enough and it is time for you all to be together again. No doubt that is a relevant sentencing consideration.[18]
67 Not much was said, however, as to the impact of your crime on Kylie Bright, and in my judgment that is at least as important. Your crime has deprived her of her partner of 12 years, and taken away the father of her child, and so far as I can see there is very little by way of offset for her in having you relieved of your suffering. In her victim impact statement, she has spoken of the feelings of loss and confusion which she and Courtney experience as a result of the death of the deceased. She has also been seriously financially affected. Without her partner, she can no longer afford repayments on her house and is selling up, and she faces what for her must be a very large financial burden of relocating and organising a new school for Courtney (as well as the significant expense of repairing the damage which you caused to the utility). A detailed psychological assessment suggests that Ms Bright is facing her plight stoically with courage and emotional strength and, on that basis, it is said that her reported symptoms are insufficient to meet diagnostic criteria. But it is expected that both she and Courtney will require assistance in the future. That is not surprising.
68 Despite the attitude demonstrated by your parents and siblings, I judge the victim impact of your crime to be severe.**
**69 You were born in Penshurst on 11 May 1974. Your father, who is now 55 years of age, is a farmer and sometime supervisor with VicRoads. Your mother, who is also 55 years of age, is a kitchen supervisor at the Penshurst Hospital. You have three brothers and two sisters: Tony, a shed builder aged 37 years; Brendan, a truck driver aged 29 years; Damien, also a truck driver, aged 27 years; Jacinta, a legal secretary, aged 25 years; and Raquel, a district nurse, aged 23 years. If the deceased had lived, he would now be 34 years of age.
70 You grew up on Stoneview among a close family who are said to be well known and respected in the Western District. You were educated at St Joseph's Primary School in Penshurst, and later in years 7 and 8 at Monivae College in Hamilton. Thereafter you attended Hawkesdale High for Years 9 and 10. It is said that you were both happy and successful throughout your school years.
71 You left school at the end of Year 10 to undertake a spray-painting apprenticeship. But you gave it away before completion in order to travel to Toowoomba in Queensland and from there to the Moomba oil and gas fields in search of better money. After some two years' work as a rigger for Century Drilling you joined Oil Drilling & Exploration and worked in the field as a painter, re-spraying rigs and trucks employed in mining activities. In that capacity you were responsible for the maintenance of "Rig 27" which I was told holds the record for the deepest hole ever drilled in Australia.
72 At the age of 22 you returned to Toowoomba and worked for about a year as a spray-painter with an industrial engineering business and then for two further years as a spray-painter/assembler at Tully's motor body works. Then you spent the next eight months off work exploring the north coast of Australia.
73 You returned to Victoria in 1999 and for the next two years you lived in Echuca and worked in the abattoirs there. During that time you met a lady, Michelle, who was visiting from Scotland who later became your wife. She fell pregnant in April or May of 2000 and with your agreement she returned to Scotland for the remainder of her confinement to take advantage of her National Health Service cover. In the meantime, you went to work near Horsham for a farmer, Mr Hird, on a property devoted to cropping, cattle and sheep.
74 Your first child, Ryan Daniel, was born in Scotland on 3 October 2001 and Michelle returned from Scotland with Ryan some three months later.
75 You purchased a house in Penshurst for yourself and your new family for $48,000, paying a deposit of $11,000 out of moneys you had saved from earnings and with the aid of $7,000 first home buyer's grant and Michelle soon fell pregnant again. Then for some time you worked for a water boring company, Sides Engineering in Port Fairy, and after that in shearing sheds, in effect taking work when and where you could get it.
76 One night, however, you came home to find that Michelle had left you and moved to Portland, taking Ryan with her. Your second child Maireed, now aged three, was thus born after Michelle had gone. Family law proceedings followed, which resulted ultimately in you being granted access to your children every second weekend, and those arrangements continued until the time of your arrest.
77 After the breakdown of your marriage, you sold the house in Penshurst and moved to Bordertown, South Australia, and you worked there in abattoirs for approximately eight months. During that time, however, you suffered a back injury while participating in Motocross. To begin with it did not have any apparent serious effect. Thus for a time you continued to work in Bordertown and to travel the vast distance to and from Portland every second weekend to maintain your access visits. But ultimately your back injury got the better of you and you became unemployed.
78 At that point your mother offered you the opportunity of returning home to Stoneview to work on the farm, and that is how you came to be living and working there at the time of the offence.
79 The position with your children remains problematical. You have not seen them since you were incarcerated, and although you have solicitors acting for you in Family Court proceedings, it is said that the orders to be made in those proceedings may depend to some extent on the sentence to be imposed on you.**
**80 You have a number of prior convictions extending back to 1992. On 6 May 1992 you were convicted before the Magistrates' Court at Hamilton of one charge of possession of a drug of dependence (namely, Cannabis L) and using a drug of dependence, but the proceedings were adjourned for a period of 12 months upon you entering into a recognisance to be of good behaviour in the meantime.
81 On 5 August 1999 you were convicted before the District Court at Warwick in Queensland of charges of causing wilful damage and serious assault, for which you were released on probation for a period of 18 months, and on 16 August 1999 you were convicted before the Magistrates' Court at Goondiwindi in Queensland of possession of a knife in a public place and stating a false name and address, for which you were sentenced on the first charge to be released on entering into a recognisance in the sum of $150 to be of good behaviour for a period of six months and on the second charge to be released on entering into a recognisance in the sum of $100 to be of good behaviour for a period of four months. I was told on the plea that at the time of those offences you had been driving trucks and staying at an hotel in Goondiwindi and found out that there had been problems involving the life of your then girlfriend. You became so upset that you punched out the front window of the hotel and the police were called and arrested you. You then punched out the front window of the police station. At one stage you had a knife in your hand and you cut yourself on the hand and you refused to tell the police who you were.
82 On 3 October 2002 you were convicted before the Magistrates' Court at Hamilton of charges of breaching the terms and conditions of an intervention order, using indecent language in a public place, destroying or damaging property, assaulting a police officer in the lawful execution of duty (3 charges) and resisting a police officer in the lawful execution of duty (3 charges). I was told on the plea that those offences arose out of some strife between you and your estranged wife as the result of SMS text messages sent each way. At the time, you were at your mother's home and the police came to arrest you. You were handcuffed and taken to the Hamilton Base Hospital in a divisional wagon, yelling. In hospital you had to be held down while given an injection and, to demonstrate your objection, you lashed out at a window, resulting in another scuffle and in you being removed to the psychiatric ward of the Warrnambool hospital for a short time. For those offences you were sentenced to a term of imprisonment of 12 months to be served by way of a community based order with a special condition that you perform 100 hours of unpaid community work.
83 Finally, on 2 July 2003, you were convicted before the Magistrates' Court at Portland of again breaching the terms and conditions of an intervention order. That offence was also said to involve the sending of a SMS text message within the context of ongoing problems between you and your estranged wife, and for that offence you were fined $850.
84 Some of your prior offences are of little relevance to the matter now in issue. But I think that the offences of which you were found guilty before the District Court at Warwick and the Magistrates' Court at Goondiwindi are significant. Like the offence for which you are now to be sentenced, they involved a disproportionate and violent reaction to news that displeased you and they included the use of a knife. Tragically, you failed to learn from those offences how to control your behaviour and your failure to do so has now led to the death of your brother.**
85 You have pleaded guilty to the offence of manslaughter and thereby saved the community and the court the expense of a trial. It has also had the effect of relieving Kylie Bright and others involved from the ordeal of a trial. That counts in your favour. Furthermore, although your formal offer so to plead was not made until 7 February 2006, which in the scheme of things is fairly late in proceedings, it is clear enough that you were willing from the outset to own to manslaughter by unlawful and dangerous act. Until the time of trial, the Crown was not prepared to accept the plea, taking the view no doubt that there was a case of murderous intent sufficient to go to the jury. Now that the Crown has accepted your plea, it entitles you to a discount on sentence.
**86 I also take into account in your favour that you immediately regretted your offending and showed true remorse. Your records of interview demonstrate that you were frank with police and took responsibility for what you had done. You admitted that you had killed the deceased and that you had brought about his death by your anger and over-reaction, which as you said to the police was unforgivable. Your mother's evidence on your behalf, and a number of testimonials which were tendered and received without objection, bear witness to the grief and guilt by which you are now afflicted over the loss that you have caused.
87 Other testimonials tendered on your behalf and received without objection describe you as a generous friend to those in need, who is particularly fond of children and with an ability to love and care for them in a fashion which does you credit. Plainly, you are also a man of strong work ethic who for most of his adult life has laboured extremely hard and well in a number of occupations in order to provide for yourself and family.
88 It is said that you have been a model prisoner and have become a mentor within the prison. I take that as a further manifestation of remorse and as reflecting favourably on your prospects of rehabilitation.**
**89 For the reasons which I have given, I regard your offence as a serious case of unlawful and dangerous act manslaughter. Although I must proceed on the basis that your offence did not involve murderous intent and, therefore, that it is not as serious as some cases of intentional homicide which are treated as manslaughter by reason of provocation, it remains that you took the life of your brother in outrageous circumstances for which you bear a high degree of culpability and responsibility.
90 The sentence to be imposed upon you, therefore, must express the denunciation of the community as well as providing adequate general deterrence.[19] The effects of your crime on the deceased and the deceased's partner and their child also demand just and proportionate punishment.[20] In my view too there is a need for specific deterrence. Your failure to learn from previous offences involving violence and the use of a knife bears that out. As against that, I am bound to give proper weight to the mitigatory considerations to which I have referred, including your plea of guilty, your relatively good previous character, your undoubted contrition and remorse, your strong work ethic and the hardship that separation from your children will cause you.[21]
91 Balancing those competing considerations as best I can, and keeping in mind current sentencing practices, I have determined that you should be sentenced to a term of imprisonment of nine years but that, given the degree of your contrition and remorse, the attitude of your family, what I assess to be your prospects of success, and the hardship which prison will cause you, it is appropriate to set a shorter than usual non-parole period [22] of six years.**
**92 Grant Daniel Casey, you have pleaded guilty to the manslaughter of your brother Martyn Casey, of which I now convict you.
93 I sentence you for that offence to a term of imprisonment of nine years and set a non-parole period of six years beginning this day.
94 I declare that the period to be reckoned as already served under the sentence I have imposed on you is five hundred and fifteen (515) days inclusive of today's date and I direct that there be noted in the Court's records the fact that the declaration has been made and its details.
95 I order pursuant to s.464ZFB(1) of the Crimes Act 1958 that the forensic sample and any related material and information obtained pursuant to the informed consent which you gave on or about 14 November 2004 be retained for placement on the database.
96 I further order pursuant to s.78(1) of the Confiscation Act 1997 the forfeiture to the State of the knife with which you killed the deceased and the wheel brace which you used to threaten him.**
[2] The policeman doing the breathing while Mark Phillips continued with the chest compressions.
[3] Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 C.L.R. 47 at 68, per Windeyer, J.; R v Osip [2000] VSCA 237; (2000) 2 V.R. 595 at [46], per Batt, J.A.
[8] [2005] VSCA 313 at [29].
[9] Of New South Wales, as his Honour then was.
[10] NSWCCA, 12 December 1995, BC9501665 at 4.
[14] [2005] VSCA 313 at [12].
[15] R v Storey [1998] 1 V.R. 359 at 369; Cheung v The Queen [2001] HCA 67; (2001) 209 C.L.R. 1 at 12[14].
[16] Scil. an intention to kill or to inflict really serious injury: Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; (1987) 162 C.L.R. 645 at 661-2; Meyers v The Queen [1997] HCA 43; (1997) 71 A.L.J.R. 1488 at 1489.
[17] Wilson v The Queen [1992] HCA 31; (1992) 174 C.L.R. 313 at 332-334 ; Lavender v The Queen [2005] HCA 37; (2005) 79 A.L.J.R. 1337 at[40] per Gleeson, C.J. and McHugh, Gummow and Hayne, JJ. and [127] per Kirby, J.
[18] See R v Skura [2004] VSCA 53 at [47]- [48]; R v Mafula Tafa Sa [2004] VSCA at 182 at [37]-[39].
[19] R v Bellingham & Fenton [2002] VSCA 35 at [13], per Winneke, P.; R v Mohammed [2004]VSC 423 at [46]; cf. R v Downie and Dandy [1998] 2 V.R. 517 at 520-522; R v Lim & Ko [1998] VSCA 54 at [34].
[20] Sentencing Act 1991, s. 5(1)(a); R v Williscroft [1975] VicRp 27; [1975] V.R. 292 at 300; R v Robinson [1975] VicRp 81; [1975] V.R. 816; Fox & Freiberg_, Sentencing_, 2nd Ed. at [3.402]-[3.403].
[21] Veen v The Queen (No2) [1988] HCA 14; (1988) 164 C.L.R. 465 at 491, per Deane, J.
[22] See R v VZ [1998] VSCA 32; (1998) 7 V.R. 693 at 698[18]; DPP v Josefski [2005] VSCA 265 at [47].
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Casey [2008] VSCA 53