R v Docking [2010] VSC 566

3 This count of manslaughter arises from the death of Michael Miller who died as a result of a head injury. Dr Ranson, a forensic pathologist who gave evidence on your trial, detected a fracture to the temporal region near the middle menigeal artery. The fracture ruptured the artery causing bleeding in the brain. That bleeding caused a build up of pressure on the brain, damage to the brain itself and ultimately caused Mr Miller's death. The jury's verdict on your trial indicates that they found beyond reasonable doubt that you inflicted the fatal injury when you punched Mr Miller to the side of the head in the early hours of 8 May 2009.

4 Michael Miller was a person you knew and with whom you had some contact on 7 May 2009. At that stage you were living at 3 Murray Street Yarrawonga with your then girlfriend Emma McLaughlin. Mr Miller lived nearby and you had walked the short distance from your house to his to inflict the injuries that caused his death.

5 On 7 May 2009 you and others had been drinking at Burkes Hotel in Yarrawonga. After leaving the hotel you and a number of others went back to your place in Murray Street and continued drinking that afternoon.

6 That group of people included you and Michael Miller. At some stage while that group was there, there was some kind of argument between your daughter Louise Docking and Michael Miller. Louise Docking was then approximately 14 years of age. It was suggested in the evidence that the argument was brief and may have had something to do with your daughter not liking to be told by Mr Miller what to do in her own house. You were not present when that argument occurred but found out about it later in the evening. At the time, you were more concerned with arranging a lift from Yarrawonga to Seymour to pick up a friend and neighbour of yours, Macka Klinge, because he was effectively stranded there. Jaclyn Fletcher, who drove you to Seymour, said you seemed a bit drunk and that you drank alcohol during the trip. After you and Mr Klinge returned from Seymour you were told about the argument between your daughter and Mr Miller. This was at some time between 9:30 and 11:00pm.

7 From then on there was clearly quite a bit more drinking apparently at Macka Klinge's house. It is unclear whether you remained there throughout the evening or whether you returned to your home at any stage. Emma McLaughlin gave evidence that a friend, George, came to your house at around 1:30am and it seems you were there at the time. At about 2:00am you apparently told Ms McLaughlin that you were going, but did not say where. About half an hour after that, Ms McLaughlin saw George again out the front of your house looking upset, then about ten or fifteen minutes later she saw you emerge from Macka Klinge's house.

8 You gave evidence on your trial that when you saw George, he suggested that you go over to Mr Miller's to talk to him about what had occurred between him and your daughter Louise. George also apparently told you that Mr Miller was awake at that time. What then occurred and what your intentions were in visiting Mr Miller at that time were both matters of significant dispute on your trial.

9 Your friend Macka Klinge, who was called as a prosecution witness on your trial, gave a statement to police that before you left his premises that evening you mentioned that you wanted to "give a bloke a clip". During his evidence at the trial, Mr Klinge said his memory had failed. However he gave evidence that he would have been telling the police the truth at the time he made his police statement. Later in that statement, Mr Klinge said that after midnight you told him that you were going to go home and get some more beer, and that you left by yourself. When you later returned to Mr Klinge's, as he described in his statement, "[you] seemed pissed and really hypo. [You were] going at a million miles an hour and sat down on the chair. [You were] not the same as what [you were] when [you] left."

10 Mr Klinge's then girlfriend Rebecca Hurst originally made a statement to police in which she said that you returned to their household later in the evening and that you were hyperactive and 'lively'. She then said that you said that you went home and that your daughter told you that some guy had called her a 'fucking ho' and that you then said something like "I went around and gave it to him". On your trial Ms Hurst was not able to recall those details however she agreed that she had previously made that statement to police and that if it was in her statement then it was the truth.

11 The witness Brett Deamyand lived next door to Michael Miller's unit in McLeod Street and he had been with Mr Miller and others drinking. He went back to his own unit and described later hearing what he called a "verbal fight". He then heard Michael Miller saying something to you to the effect of "No Chris" and denying that he had said anything about your daughter.

12 In your evidence you said you went to Michael Miller's and were invited in by him. You then gave an account of the incident which involved Michael Miller starting the trouble between you. The jury clearly rejected this account. You accepted that you hit Michael Miller although not in the region where he sustained the fatal fracture. The explanation you gave that you went to Michael Miller's house at 2:00 am to find out what happened with your daughter when you had known about that incident for many hours beforehand, and had claimed not to be angry about it, is demonstrably false and I reject it. You accepted that you used the word "clip" as referring to some form of assault.

13 Some time after 2:00 am Mrs Pamela Miller received a phone call from her son Michael who told her he had been bashed and asked her come around. He identified you as having hit him and said you did that because he had made some comment to your daughter which you did not like.

14 After being taken to Yarrawonga hospital Michael Miller was examined by the medical staff including by the on-call doctor, Dr Nigel Murray. At that stage, Dr Murray found no sign of the cerebral bleeding which must have been well underway and which ultimately caused Michael Miller's death. However because the hospital had no facility to determine whether Michael Miller was suffering from life threatening cerebral bleeding, he was admitted to the hospital for neurological observation. At about 4:30 am, Dr Murray was recalled to the hospital because Michael Miller was unresponsive and he was then taken by ambulance to Wangaratta where cranial surgery was carried out and then transferred to the Alfred Hospital where he later died.

15 Mr Langslow put on your behalf, correctly, that there was no weapon involved and it was not a sustained beating. I also accept that after the assault when you saw blood you did enquire of Michael Miller as to whether he was alright.

16 Whilst I am willing to accept that you were not in a rage, I am satisfied that you went to Michael Miller's house with the intention of assaulting him and that, in a state affected by the alcohol you had drunk, you had become angry about what you had been told about the verbal exchange between Michael Miller and your daughter.

17 I have carefully read four Victim Impact Statements that were tendered by the prosecutor on your plea, being those of Pamela Ann Miller, the mother of the deceased man; Christopher Miller, the father of the deceased; and the deceased's sister and brother, Lauren and Ryan Miller. Mrs Pamela Miller's Victim Impact Statement also attached a book of photographs about the life of Michael Miller.

18 These statements are a heart rending account of the traumatic loss that each member of the family has suffered as a result of Michael Miller's death. Both parents of Michael Miller describe the pain of a mother and father losing a son to whom they were obviously close. The pain of that loss will last for a very long time. Michael Miller's brother Ryan and sister Lauren have also suffered considerably since their brother's death. Apart from the shock of such an event occurring, Ryan has apparently suffered a psychiatric breakdown and his life has been adversely affected in a number of ways. Similarly Lauren's life, including her ability to work and care for her family have suffered from the trauma of the death of Michael Miller.

19 I have taken these statements into account in the sentence I will impose on you. The suffering this family has experienced cannot be removed by anything this Court might do or say in sentencing you but I hope their pain eases over the years to come.

20 Your personal circumstances were thoroughly detailed in the report of Mr Dion Gee, forensic psychologist, that was provided to the Court. They show that your background was difficult and lacking in some important areas.

21 You are now 41 years of age and were born and initially brought up in Melbourne and you are the youngest of three children. When you were 14 years old your parents separated and it was around that time that you apparently began drinking alcohol to excess. You found school difficult and by the age of 15 years your education was over. You then worked in a variety of jobs. By the age of 15, according to the Forensicare report, you had already been using marijuana regularly for two years.

22 You have a daughter from one relationship and she was living with you in Yarrawonga when this incident occurred in May 2009. You are also the father of a one year old child born whilst you have been in custody.

23 Mr Gee describes you as being at the low end of intellectual functioning and outlines your history so far as diagnoses of depression and an adjustment disorder are concerned. That involves you being prescribed medications that included Valium, Serapax and Largactil. Mr Gee concludes that you appear to have, among other things, major depression, drug and alcohol dependence and considerable anxiety. He regards your depression as severe. He also describes the fact that you seem to have little understanding of the need to control yourself and that is something you simply must learn to do.

24 Your counsel, Mr Langslow, submitted that I should regard your mental conditions as being such as to reduce your blameworthiness for this offence because they affected your ability to make rational choices, think clearly or reduce your ability to see the wrongfulness of what you did. The complication is that you had likely drunk a large amount of alcohol in the hours leading up to this offence being committed. From the report of Mr Gee, you appear to realise that your previous offending usually occurred when you were affected by either alcohol or drugs. As I read Mr Gee's opinion, your offending, including in this case, is much more to do with the effects of alcohol and marijuana than with your depressive condition. I must also consider whether your depressive condition or conditions are likely to make imprisonment more difficult for you. Mr Gee's opinion is that provided you have regular access to mental health services in custody your conditions may improve given the absence of alcohol and drugs.

25 From having heard the evidence in your trial and having read Mr Gee's report, there is some link between your early life, your depression and intellectual functioning, your consumption of drugs and alcohol and your involvement in violent offences. In his written reference supporting you, your brother Stephen Docking states that you have told him that you understand that you and alcohol are "not a good mix". Despite this apparent insight, you have continued to drink alcohol, and this tragedy is one of the results. Mr Langslow has told me that you plan to cease drinking altogether. It was not originally put that you have undertaken or completed any alcohol education or rehabilitation courses but today I have been provided with documents which show that you have participated in programs at the Metropolitan Remand Centre in December 2009, May 2010 and November 2010 relation to alcohol and drugs as well as workplace courses. In addition the testing of you which had occurred regularly since July 2009 shows you to be free of any sign of drug taking.

26 Due to the connection of these factors I consider your blameworthiness for this offence is reduced to some extent but not substantially given your understanding that when you were drinking you could become violent. I still consider that one of the purposes of sentencing you should be to deter others from this kind of conduct as well as making clear to you that you can expect serious punishment for engaging in violent conduct like this.

27 Mr Langslow produced a number of references from people who know you including the one referred to from your brother Stephen. Those references show the positive side of your character including your ability to be respectful to others. It seems you are committed to your daughter and want to continue to be a good parent to her. These references also suggest that this event has changed you and well it might do so. When you are released you will have a number of people, including your family, to support you.

28 Importantly, you have a significant criminal record which you have admitted through your counsel, being some 20 convictions from nine previous court appearances over the period from 1986 to 2008. I have little doubt that most, if not all, of them were related to drinking to excess. The offences are for both dishonesty and violence and reflect on some occasions a serious level of offending. It is important to note that in August 2007 in the Cobram Magistrates' Court, you were convicted of damaging property, threatening serious injury and assault for which you received a six month Community Based Order and then in May of the following year in the Wodonga County Court you were convicted of aggravated burglary and recklessly causing serious injury for which you were sentenced to 12 months imprisonment to be served by way of Intensive Corrections Order. The offence for which you are now to be sentenced occurred in May 2009 two days after that ICO had been completed. There are then the offences of recklessly causing injury and intentionally damaging property for which you were convicted at the Wangaratta Magistrates' Court on 16 June 2008.

29 That violent sequence raises real doubt about your prospects for rehabilitation. Given the circumstances as I understand them, I consider your prospects for rehabilitation face considerable obstacles although I accept that you wish to try to change your drinking patterns and it would now appear that in custody you are seeking some assistance to do that. You need to understand that unless you can control your drinking and your violence, the penalties that will be imposed on you will become very substantial indeed. It will not be enough for you to say you will stop drinking. Unless you do something significant about it, the rest of your life will be ruined by the consequences. At age 41 you may not have that many chances left.

30 Mr Langslow submitted that there is a broad range of offending that can amount to manslaughter and that your conduct in this case falls at the low end of the scale. I agree there is a very broad range of conduct than can amount to manslaughter. However, you committed this offence in circumstances where your attack on Michael Miller was unprovoked and in his own home at 2:00 am. You were not defending yourself and you were affected by liquor. You had recently committed other violent offences. In my opinion this is an offence closer to middle of the range of conduct that constitutes this form of manslaughter.

31 The confrontation between you and Mr Miller has resulted in the greatest of tragedies and is a further demonstration of the consequences of combining alcohol, violence and some bravado. I suspect that you do regret what has occurred but you have mainly been concerned to justify your own behaviour. What you have told Mr Gee indicates a serious lack of understanding of your crime and its consequences. The Miller family have lost an obviously much-loved family member over what seems to have been a very minor disagreement between Mr Miller and your daughter.

32 Given the pattern of alcohol abuse and offending which have marked your history, it would be a good idea if you did not drink again and if you took advantage of any treatment both in custody and after your release to help you achieve that. For the benefit of both yourself and the protection of the community I strongly recommend that since you have indicated a willingness to have further treatment for your depression and drug and alcohol dependence, you be given every opportunity to participate in whatever therapy or courses will improve your prospects of being successful. If you are not given that assistance I suspect you will offend again and, if you do, the consequences will be significant.

33 Given that your sentence must deter others from conduct such as this as well as specifically deterring you and also given that the protection of the community is a further factor to be considered, in my opinion the appropriate sentence for this matter is that you be sentenced to be imprisoned for a period of eight years and six months and I so order. I further order that you serve at least five years and six months before being eligible to be released on parole.

34 I declare that your pre-sentence detention is 580 days and that that period be reckoned as having been served as part of your sentence.

35 I direct that these declarations and their details be entered into the records of the Court.