R v Croxford & Doubleday [2009] VSC 516

2 After closing time, the five of you stood talking together in an area immediately outside the tavern. An incident occurred when you, Doubleday, made a remark to which the deceased took offence. The deceased then produced a knife. What happened with that knife is not clear. It was produced, and plainly produced, and there is no doubt about that, although it may or may not have been used in a threatening manner.

3 In any event, your reaction, Croxford, was immediate. You were hostile towards the deceased, particularly regarding the production of the knife. You removed your shirt. In the exchange that initially occurred, no blows appear to have been thrown and at some stage the knife disappeared from view. You, Croxford, pulled over a light pole immediately outside the hotel, indicative of your state of anger and frustration at that time.

4 At some time, either then or shortly afterwards, the deceased was observed to have his belt wrapped around his right hand with 30 to 40 centimetres of it hanging down. In that way, it was probably of little utility as a weapon, but it did show that the deceased was responding to fight. At the very least, he was making preparations to defend himself. The general melee then moved away from the entrance area of the hotel towards the middle of the car park.

5 You, Doubleday, were attempting to calm Croxford down and push him away from the deceased. Such attempts were unsuccessful and the heated verbal exchange continued. You, Croxford, threw a punch at the deceased, who started to back away. At this point, you, Doubleday, moved away and spoke to Ferguson and Plunkett who were further down the car park, enquiring whether they were all right.

6 The three of you, that is, you, Doubleday, and the two young women, then moved back towards the other two men. Shortly after that, you, Doubleday, moved forward and punched the deceased to the left side of the head. I am satisfied that you were frustrated with the continuing argument between Croxford and the deceased, and that you had become angry about it, but that you did genuinely want to bring it to an end. The deceased stumbled to his right. He lifted his arms with palms facing outwards and proceeded to walk backwards towards Leisure Centre Drive and was heard to say "I'm walking away."

7 Very shortly after the deceased moved away from you, Doubleday, you, Croxford, followed him and eventually so did you, Doubleday. At some point along Leisure Centre Drive, you, Doubleday, armed yourself with a garden stake by pulling it out of the nature-strip. You were by then some distance behind the other two who were still arguing with one another. At some stage, you, Croxford, also became armed with another garden stake. At a point a few hundred metres along Leisure Centre Drive, near the entrance to the walkway to Simmons Court, the deceased turned to face you. By then, or shortly after then, the knife was in the deceased's right hand and the belt was wrapped around his left hand. It transpired that he had an injured foot and, although mobile, he was not capable of moving away particularly quickly. I am satisfied that you were both pursuing him up Leisure Centre Drive and that you were both armed with garden stakes. It is not clear at that time what intent you had actually formed.

8 You, Croxford, when interviewed by the police, accepted that you struck the deceased in an attempt to stop him because he was running towards you with a knife. You then said, when referring to Doubleday, "I didn't hit him again, and then someone else hit him and hit him hard and I grabbed them and told them to stop." "All right" said the interviewer, "And, yeah, it was too hard, it was fucking crazy. It was - there was no need for that."

9 The words "No - Mick, no" were heard by the witness, McNicol, after the fighting had stopped. It is reasonable to accept that the words actually spoken were "No - Rick, no", and it is reasonable to assume that those words were spoken after you, Doubleday, had struck the deceased at least once and perhaps more than once.

10 You, Croxford, were convicted of manslaughter. I am satisfied that the jury accepted that you were aiding and abetting the attack which was made by Doubleday which caused the death of the deceased. That is, you were prepared to assist the attack on the deceased. The jury rejected any claim to self-defence but were satisfied that although you intended to harm the deceased, you did not intend to cause him death or really serious injury.

11 I will set out a number of passages from your record of interview, Doubleday, in which you describe these events:

"Q 40: Simply, Ricky, in relation to this incident, can you tell us what happened?

A: I'll tell you exactly what happened. I was just waitin' outside the Bira, there was probably 10 people around, you know, just waitin' for taxis or whatever. Mr Winter, I guess his name is - I don't know for what reason, I think there was a couple of ladies there that he might have been sort of interested in or something and I ended up talking to them and I do not know why, but he pulled this knife out. Like there was no - you know, like nothing towards him, nothing to start it off. It was just like sort of an - an intimidation attempt, you know. Like, "Fuck off," sort of thing, you know, and I sort of stepped back and that and sort of won-, and still in shock about it all and my friend that I was with for the night, Ronald, bloody he ended up seein' the guy pull the knife on me and wasn't very impressed with it at all, so them two ended up getting into a bit of an argument and that and it sort of started gettin' pretty heated over the knife and that. Croey was tellin' him to put the knife down and put it away and whatever and he wouldn't and so them two just kept arguin' where it started - it started at the front of the Bira and them two had been arguin' all the way along the front and still arguin' walking up towards the leisure centre and I was tryin' to break it up the whole time. Like I told my mate, you know, "Forget it. Don't worry about it," but it was obviously too far gone by then. I tried breaking them up several times, you know. Just - just trying to split 'em up. Then they kept walkin' up the road and I could just see 'em still arguin'. I think - I don't know, I just - I was worried about my mate and the knife and I just picked up a garden stake or somethin' out of a bush and proceeded up the road to help my mate. Just - I was fearin' for my life and his at that time, as you could imagine. I walked up to 'em, they - they - they were stopped by then. They were still arguin' pretty much about the fight and I got up close enough to see him with the knife in his hand which I suspected he had which was why I grabbed the bloody stick and I got up to 'em and there was prob'ly a good 2 metres between them two arguin'. I stood next to my mate, it all got too much for Mr Winter and he - he come towards us with the knife. I - I had to hit him with the stick. Otherwise it would've been me that was fuckin' cut up, dead. It was just self defence."

12 On a number of occasions you said you were either acting in self-defence or defence of Croxford. I do accept that you did follow the pair up Leisure Centre Drive because Croxford had gone ahead and that you were worried about him and about how this whole incident was going to end. I also accept that although your punching of the deceased was misguided, it was generally for a good motive.

13 The jury accepted that you believed it was necessary to do what you did to defend either yourself or Croxford from a threat of death or really serious injury, but that belief was not based on reasonable grounds. It also may be that the jury was simply not satisfied that the prosecution proved beyond reasonable doubt that you did not hold such a belief. I am satisfied that the jury concluded that since -

• the knife had not been seen for some time prior to the point at which you armed yourself,

• both you and Croxford had armed yourselves with substantial weapons,

• that you had some appreciation that the deceased was drunk and heading away, and

• before you struck a blow the deceased had been struck by Croxford,

you therefore did not have reasonable grounds for a belief that it was necessary to do what you did in self-defence or in defence of another. It should be noted that the jury otherwise rejected self-defence. It may be, and some may say, that the verdict of the jury was merciful, and that may be so. But you are not to be punished for that.

14 The injuries sustained by deceased were serious, particularly his head injuries, and he died at the scene. I observed during the trial, and I have observed again this morning that this was a very unnecessary loss of life. The effect on the family of the deceased is profound. One feature of the case that cannot be avoided however was the deceased's producing a knife. He had a lot to drink, his judgment may well have been impaired. But for all that, he did not deserve the fate that befell him. The criminal law, with all its imperfections, intervenes. His loss cannot be adequately compensated for, but the verdict of the jury after careful and reasonably sophisticated consideration of the evidence, supported the conviction. Your lives and the lives of many around you will be fundamentally affected by these convictions and the sentences which will follow.

15 I note that filed this morning and received a few days ago were the Victim Impact Statements from the members of the deceased's family. They are moving documents, and they do indicate the suffering that is the fate of others who are, as your families are, the ones in this whole episode who are entirely blameless.

16 I will now deal with the features individual to each of you. Because of the convictions, even though the presentment shows Mr Croxford's name appearing first, I will deal with you, Mr Doubleday.

17 You are now 23 years of age. You will be 24 on Sunday. You were 22 at the time of the offence. The crime of defensive homicide, of which you have been convicted, carries a maximum penalty of 20 years' imprisonment. The Court of Appeal has recently said that the offence is to be regarded as a very serious one.[1]

18 The important feature of this offence, in relation to its assessing its seriousness, is that the act is accompanied by an intention to kill or cause really serious injury. I will proceed to sentence you on the basis that you intended to cause the deceased really serious injury.

19 You have prior convictions dating back to June 2002 when you were 16. You have a total of three court appearances, giving rise to 11 findings of guilt. A number of them are related to the trafficking, use and possession of cannabis. One prior conviction related to your possession of a pole, which it is suggested you carried for your protection. It was a long time ago, and while having a peculiar connection with these events, I do not consider it particularly relevant to your sentence. Your prior convictions generally are otherwise unremarkable, and apart from reflecting your use of cannabis, they are not of great significance. It is important to note that none of them are for violence or involve the direct use of weapons.

20 You are young. With young offenders generally, the applicable sentencing principles mean that rehabilitation will be the most important aspect, however, for offences as serious as this, they must take the backseat. Your youth, however, is still an important feature of sentencing. You were candid with the police in your interview and at various points throughout you expressed both remorse and regret. I understand why you chose to stand your trial and the outcome has been of benefit to you.

21 You have support from your family and friends. Your fiancé, your immediate family, your extended family and your friends were all here during the trial. Some for all of it, some when they were able to get here, but anybody who attended throughout the trial could not have helped but observe the support that you had.

22 You grew up in Tallangatta. Your parents separated when you were two. Your mother formed another relationship which ended, in part, because of her concern about your treatment at his hands. This man had two other sons who were older than you, and the unit was not harmonious. Your mother's partner probably had quite unrealistic expectations where you were concerned, and whether he did or not, that was plainly the impression that you had.

23 You left school after Year 10, your schooling generally having been fairly disjointed. Although you had noted sporting ability, you chose not to pursue an important opportunity to advance your cricket career because of the pressure it would have placed on your mother, both financial and otherwise.

24 Your employment has been straight forward, including six months or so you spent in Queensland and some time spent in Tasmania. Your returned to the local area and you lived for some time with your co-accused. You eventually commenced work with your father as an asphalter, and such work is available to you upon your release. Your relationship with your fiancé is long standing, from about the time you were both 16. She is a qualified hairdresser, has kept in full-time employment, and has given you her support.

25 You have known your co-accused for many years. He is 14 years older than you, his brother, Robert, is married to your mother's sister. You are an insulin dependant diabetic, to such an extent as to provide some basis for your sentence being served in slightly more difficult circumstances. I have taken it into account in forming this sentence. You have taken the opportunity whilst in prison to undertake coursework, including the Stepping Stone course for personal development a peer education course. You have found work to do and done it. Your behaviour in prison appears to have been exemplary.

26 Your fiancée and your father gave evidence on your behalf at your plea. Their support of you is admirable and you should be grateful for it. Your friend, Grant Williams, told me you are a good friend who had behaved, on at least one occasion, bravely. That particular occasion involved your rescue of a young woman from a river, and your friend told of how afterward, you sought no kudos from it. Your behaviour on the night of 26 July 2008 was at odds with that picture. It was fuelled by alcohol, and featured a degree of frustration and anger which stemmed from the situation you found yourself in. I accept that you were generally driven by a motive to protect Croxford, who was ironically 14 years your senior, but the whole situation got out of hand. As a result a man is dead.

27 I have received a report concerning you from Forensicare, dated 11 September 2009. There is really only one additional matter which emerges from the report. You were, in the view of the consultant psychologist Dr Michael Daffen, at the time of these events addicted to cannabis. It is important to note that you seem to have managed to overcome that addiction during your time in prison, which is a thoroughly good thing. It is impossible to say whether such an addiction had anything to do with this offending and in that regard I have not accorded the matter any weight.

28 I do accept that you were affected by alcohol that night. I accept that it led to your general state of confusion. I accept that you did your best to stop the fight and that involved punching the deceased in order to try and get him to leave, but by that time, as I have already observed, you were angry and upset. That anger eventually became focused on the deceased rather than Croxford, and although consistent with the jury verdict (he jury found that your belief, while it existed, was not based on reasonable grounds; that part of your response was fuelled by anger) you are remorseful and I accept that you have reasonably good prospects of rehabilitation.

29 This is a reasonably serious example of the crime of defensive homicide, but it was spontaneous and as a result of circumstances largely outside your control. The jury did find however, that at least, you had the intention to cause really serious injury. The principles of general and specific deterrence and just punishment must be applied in circumstances where a death has been caused and you have caused it.

30 I have taken into account all the matters put on your behalf, but in particular your youth and the very strong support which you have. I will return to the details of your sentence in a moment.

31 Mr Croxford, you are now 37 years of age and will be 38 towards the end of November. You are almost 14 years older than Mr Doubleday. You had a very difficult childhood, you were born locally and you were the youngest of ten children. In particular because of the behaviour of your father, the family became dysfunctional and you were placed into an orphanage at the age of four, where you remained until you were about eight. You then had various foster-care placements, one of which you found particularly difficult. You managed to get yourself discharged as a ward of the State when you were 14 and have largely fended for yourself since.

32 You have had two major relationships, the first of which lasted for eight and a half years, and produced your son and your daughter with whom you have a good ongoing relationship. The second is your current relationship with your partner, Kelly, which has continued for something over nine years. She has given you her very loyal support throughout the whole of these proceedings, as have other members of your family.

33 Your criminal history suggests that you were an angry youth and probably an even angrier young man. You have a number of prior convictions. From 11 Court appearances you have 26 prior convictions. You have three convictions for causing injury recklessly, and one for causing injury recklessly or intentionally. Two convictions for unlawful assault, one for assaulting police officers, and one for hindering police. But as I remarked this morning on the plea, those prior convictions really end in 2002.

34 In 1999 you were involved in a serious motor car accident which killed your friend, who was the driver of the vehicle. You suffered resultant post-traumatic stress disorder, and underwent some psychological treatment arising out of that incident, treatment which appeared to have helped you substantially with the anger problems that you where experiencing at the time. Again, it must be said that it is to your credit, given the overall circumstances of your upbringing, that you have no convictions for violence since 2002.

35 I received a report about you from Mr David Wilshire, dated 30 September 2009. Again, as with Mr Doubleday, nothing remarkable appeared from the report. But any fair reader could not help but be left with the impression that you have an attitude which tends to blame other people, in this case Mr Doubleday, and, in relation to your prior convictions, anyone else. It will, in the future, be important for you to realise the importance of the role that you played in this event. Although you had a reason for it, your reaction to the deceased was totally out of proportion relative to anything that had happened at that stage, that is, when he first produced the knife. After Doubleday intervened and struck the deceased, an opportunity for the thing to end was plainly present. You, the senior member of the group as between yourself and Mr Doubleday, and by some 14 years, went on with it. You were the one who perpetuated the argument with Mr Winter while he retreated up Leisure Centre Drive. That action was one of the most important causes of what happened shortly after that. You struck the deceased with a stake, and you were present while your co-accused struck him. Even on your own version of events, your co-accused struck the deceased, and it was you that told him to stop. You have been convicted of manslaughter, an alternative open to the jury. It means that the jury accepted the view that you had not formed any intention to cause death or really serious injury. That distinguishes you from Mr Doubleday. But you are older, and you should have exercised more sense in the situation. You have a more significant criminal history. I accept that you are remorseful and that you have at least reasonable prospects of rehabilitation. I have taken into account the matters put on your behalf, and as in the case of Mr Doubleday. I have particularly recognised the support that you have had. The application of the principles of specific and general deterrence, however, cannot be avoided. Manslaughter is, of itself, a serious offence which involves death. Just punishment has to carry its part in these sentences. Would you stand up please.

36 Ricky Doubleday, for the crime of defensive homicide, I sentence you to be imprisoned for nine years and I fix a non-parole period of six years before you are eligible for parole. I take 446 days of pre-sentence detention, excluding today, as already served under that sentence. I direct that the details of that declaration be entered in the records of the Court.

37 Ronald Dale Croxford, for the crime of manslaughter, I sentence you to be imprisoned for seven and a half years, and I fix a non-parole period of five years before you are eligible for parole. I declare that 446 days, not including today, have already been served under this sentence. I direct that this declaration, together with its details, be entered in the records of the Court.

[1] DPP v Edwards [2009] VSCA 232.