R v Disher [2007] VSC 269

2 Not long before dawn on 9 August 2006, you went with two other men, Burns and Elliot, to the deceased's home. Your purpose in doing so was to continue a drinking binge which you had commenced the previous evening. Some time after arriving at Roelofs' home, an altercation broke out between you and him. You commenced to attack him violently and attempts by Burns and Elliot to restrain you were unsuccessful. You punched Roelofs in the face repeatedly, bashed his head into the side of a coffee table, kicked him in the head several times and stomped on his head several times. After the assault you left Roelofs' house with Burns and later tried to burn your bloodstained clothing at his house. Elliot called an ambulance, which attended at about five past six in the morning, but despite the best endeavours of those who subsequently attended him, Roelofs died a short while later.

3 A subsequent autopsy conducted by a forensic pathologist, Dr David Ranson, determined the cause of death to be blunt trauma to the head, neck and chest. Evidence before this Court amply demonstrates the injuries which led Dr Ranson to that opinion.

4 You were arrested early in the afternoon of the same day. You were interviewed by police, in which interview you said you had been drinking with Burns and Elliot in the evening before going to the deceased's home to continue drinking. You said that the immediate precipitating cause of your attack on Roelofs was a comment which he made concerning his having had sexual intercourse with an 11-year old girl or girls. There was some corroboration of such a comment having been made, although exactly what Roelofs said remains unclear. You told police that Roelofs' comment upset you because you have an eight year-old daughter, yourself, and, as well, had been the subject of violent sexual assault by two men when you were young.

5 You described to police your assault on Roelofs and said that at least twice during that assault, Burns and Elliot had tried to restrain you but had been unable to. You said that you were very drunk at the time and that you expected that you would hurt the deceased by what you were doing.

6 In the course of your interview, you told police that you did not intend to kill Roelofs, but that when he spoke of having had sexual intercourse with 11 year-old girls, you just snapped.

7 In the course of the evening before you went to Roelofs' house, you had consumed a very large quantity of alcohol, probably mostly bourbon and cask wine. The others had in all likelihood consumed similar amounts.

8 Having regard to the evidence of the crime scene examiners and the independent witnesses who were present when you assaulted Roelofs it is reasonable to conclude that your account to the police of how Roelofs received his injuries is reasonably accurate.

9 Your personal history and circumstances are fully set out in two reports tendered without objection on your plea, one from a psychiatrist and one from a psychologist. As the Crown did not suggest any material error in this information, it may be taken as being sufficiently accurate for sentencing purposes.

10 You were born in Melbourne on 20 June 1972 but attended primary school in Eagleby, a suburb of Brisbane. You told the doctors that you were only a mediocre student but had no significant behavioural disturbances, although you also reported being bullied at school.

11 In due course your family returned to Melbourne and you attended Clayton Primary School and then Huntingdale Technical College, at which you completed Year 7. You said you were frequently absent from school and on this account were eventually expelled.

12 You told the doctors who saw you that you had been sexually abused at about the age of 7 and then later on by the owner of a chicken shop in which you worked after school. You described these sexual assaults in some detail and it would appear that they had a profound effect upon you. These events caused you considerable anguish over a long period and although you have undergone some counselling, both outside and inside the prison system, you still claim to suffer from their after effects even though you consider it is better that "it is now all out".

13 After finishing school you worked in various occupations. You also suffered periods of unemployment and by about the age of 15 you began to have involvement with the criminal justice system relating to substance abuse. At the time of Mr Roelofs' death, you were living in Bendigo in cheap accommodation. You were obviously drinking very heavily and associating with others of similar disposition. You lived on social security payments.

14 You were assessed by the psychologist and psychiatrist in preparation for your plea in this matter. You told them that you had seen psychiatrists during various periods of incarceration in the prison system. You said you were diagnosed as schizophrenic and were prescribed anti-psychotic drugs. You said you were often paranoid about other people's behaviour towards you and were concerned that people laughed at you. You told the doctors of auditory hallucinations of unfamiliar voices. These symptoms were worse when you were in gaol, particularly when you were isolated.

15 At the time you saw Dr Danny Sullivan, a psychiatrist, at the end of 2006, you said you were taking quetiapine, an antipsychotic medication, which you said slowed down your thinking. You told Dr Sullivan that when you drank with strangers you easily became aggressive and needed the intervention of others to prevent altercations.

16 You reported heavy alcohol abuse over many years, since you were about 16, to Dr Sullivan. You said that by 2005 you had developed morning tremors caused by alcohol withdrawal, by which time you said you were drinking about six litres of cask wine a day.

17 As far as other drugs were concerned, you told Dr Sullivan that you had used cannabis, amphetamines, heroin, LSD and occasionally ecstasy. You also said that you have sniffed petrol.

18 You have had extensive contact with the criminal justice system, mainly for crimes of dishonesty and driving offences. As a result you have been imprisoned on a number of occasions. Your court history extends from about 1990 to the present. However the only crimes of violence on your record are a charge of assault in April 1990, a charge of affray in June 1998 and one of assault in January 2006. Your other offending has been mainly acquisitive in nature. The assault offences appear not to have been at the upper end of the scale, judging by the penalties imposed in respect of them.

19 Dr Sullivan assessed you as being of low normal intellect, polysubstance dependent and as having chronic alcoholic hallucinosis, a substance-induced psychotic disorder. He thought these conditions had developed over a very long period of exposure to alcohol, probably exacerbated by other toxic substances. He was of the view that you were aware that your conduct which led to Mr Roelofs' death was wrong, despite your drunkenness and your psychosis at the time.

20 In May 2007 you were assessed by a psychologist, Dr Simon Kennedy. You gave him a similar history to that which you gave Dr Sullivan, although on this occasion your assessment of the amount of alcohol you had consumed before you assaulted Mr Roelofs appears to have been greater than what you told Dr Sullivan. He noted your symptoms of psychosis, as did Dr Sullivan, but, unlike Dr Sullivan, he was uncertain as to whether this psychosis was related to substance abuse or not. He thought you had a substantial psychiatric disability which required indefinite psychiatric treatment.

21 The effect which your undoubted psychiatric state had on the commission of this offence is difficult to ascertain. Whilst it is reasonable to attribute your aggressive response to Mr Roelofs' reference to sexual activity with children, at least in part, to your consumption of alcohol on that evening, it is more difficult to attribute any particular part of your response to your psychiatric condition per se. A further complication for sentencing purposes is introduced by the divergent opinions of Drs Sullivan and Kennedy as to whether your condition was substance induced or not.

22 Having regard to the onus being upon the Crown to establish aggravating factors, it is appropriate that you be sentenced upon the basis that you are and have been suffering from an endogenous psychosis rather than one induced by alcohol or other drug abuse on your part. It should also be concluded that this psychiatric state was a moderate contributing factor to your actions as a result of which Mr Roelofs died. It was certainly not the whole cause of your criminal behaviour which, as Dr Sullivan noted, you were aware was wrong.

23 Victim impact statements were filed in this case by various members of the deceased's family. They paint a picture of a man who, although he suffered from various problems, including being afflicted by alcohol, was much loved by his family and had much to offer them. The suffering you have inflicted on them must be acknowledged. As far as those victim impact statements contain admissible and relevant material, they have been taken into account in fixing your sentence.

24 As has already been noted, you pleaded guilty to manslaughter and offered to do so very early in the forensic process. Your counsel urged the Court to consider the plea as indicative of genuine remorse on your part as well as a desire by you to save Mr Roelofs' family the trauma of a trial. I accept that by your plea you have expressed some remorse, although it must also be recognised that the circumstances of Mr Roelofs' death were such as to lead inevitably to criminal responsibility being visited upon you. There was no real possibility of your escaping this consequence.

25 In the course of the plea on your behalf, your stepfather, Stephen Morunga, gave evidence. He corroborated some of the history you gave the doctors and expressed a willingness to support your rehabilitation upon your release from prison.

26 In fixing an appropriate sentence, the Court must take into account a number of principles fixed by law as defining the purposes of the sentencing process. The sentence the Court imposes must punish you for the crime you have committed, it must signify society's condemnation of your conduct, and it must deter you and others from engaging in violence as a solution to conflict. In your case, however, because you were suffering from a serious psychiatric condition at the time you committed this offence, the law recognises that deterring you and others from committing offences of this nature may have a somewhat modified role to play. This is not only because of your psychiatric condition, but also because it is clear that your overall functioning on the night you killed Mr Roelofs was affected to a moderate degree at least by that illness. In the circumstances, in accordance with sentencing principles recently restated in this State[1], the factors of deterrence should assume a somewhat modified role in sentencing in your case.

27 Another sentencing principle of importance is that of establishing conditions conducive to your rehabilitation as a useful member of society upon your release from prison. Your counsel has argued that your addiction to alcohol can and will be overcome by you. He supports this submission by reference to your having previously overcome an addiction to heroin. He said that you have promised never to drink again. Experience shows that such promises are extremely difficult to keep. However, in prison it is expected you will remain alcohol free and will be given some assistance to remain that way when you are eventually released. In this regard, the support expressed by your stepfather, Mr Morunga, is also relevant.

28 Finally, it is necessary for the Court to consider the principle of protection of the community in fixing an appropriate sentence. In your case the community will be protected during the time you are in gaol and whilst you are on parole, if that is granted to you at some time before to the expiration of the head sentence I am about to impose. It is to be hoped that at the end of your time in prison and by the time your parole ceases, you will be sufficiently in control of yourself to pose no further threat to community safety.

29 Your counsel drew the Court's attention to a number of examples of various sentences imposed for manslaughter which he submitted were not dissimilar to your case. However, it is trite to observe that manslaughter as an offence is capable of attracting a vast range of custodial and even non-custodial sentences, depending on the circumstances in which the homicide occurred and, as in your case, the mental condition of the person being sentenced. That your attack on Mr Roelofs was vicious and was in no way justified by your reaction to his offensive comment concerning young girls is not now disputed by you. On the other hand, as I have indicated, it is necessary to give appropriate weight to your mental illness in respect of those sentencing principles to which it is relevant.

30 It is the sentence of the court that you be imprisoned for seven years. It is further ordered that you serve of a minimum of five and a half years before being eligible for parole.

31 I declare 348 days as having been already served in respect of this sentence and I order that that declaration be entered in the records of the court.

[1] R v Verdins [2007] VSCA 102; R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398.