R v E J C [2008] VSC 474

3 At 1:00 am the disco was turned off and the lights in the shed turned on, signalling the end of the party. A short time afterwards you went outside to look for your brother. There was no adult supervision outside the premises. On moving through the main gate, it seems you were confronted with abuse from Jack Ellis. Both you and he were 17 and had played junior football together. There was no longstanding enmity between you, but it appears he was upset as a result of an incident some three weeks earlier at another party, in the course of which he believed you had hit a friend of his.

4 Whether for this reason or some other reason, he abused you in the strongest terms, calling you a "cunt", "a cunt of a bloke", a "hero" and a "moron".

5 Your response was to ask whether he wanted to come out on the road.

6 He responded by saying something to the effect that you were only interested in starting fights and he then continued to abuse you in foul and strong language.

7 Some four of the immediately surrounding onlookers expected this abuse to provoke a fight.

8 Others present describe Ellis as being very angry.

9 In the event you were provoked by the tone and terms of the abuse to attack Ellis. You stepped forward and grabbed Ellis to the collar region with your left hand. You then struck him with your right fist either one or two blows to the face. Ellis then fell backwards as a result of the effect of a punch to the left side of the face.

10 On falling he struck his head against the concrete footpath, fracturing his skull and suffering brain injury. This injury was significantly compounded by subsequent bleeding within the skull and despite undergoing emergency treatment both at the Stawell and Alfred Hospitals, including surgical intervention, Ellis passed away two days later.

11 At the time of the fall Ellis had a blood alcohol content in the order of .085, having drunk in the order of a dozen cans of Jim Beam and Coke over the course of the preceding five hours.

12 I am satisfied that it is probable this contributed to the manner of his fall after you struck him.

13 I am also satisfied that the punch which caused him to fall was not a particularly forceful punch, but rather as both you and a number of witnesses described, a punch in the nature of a jab from the shoulder. The evidence of Dr Dodd the pathologist as to bruising in the area of Jack Ellis' left lip, supports an inference of blunt trauma force at the lower end of the range of mild to moderate.

14 Dr Dodd also describes bruising to the right neck at the upper end of the same range, consistent with forceful grabbing of the deceased's shirt in the collar region as described both by you and a number of witnesses, together with an associated push or punch to this area.

15 I must form a view of the facts which is consistent with the verdict of the jury, does not involve conclusions adverse to you of which I am not satisfied beyond reasonable doubt and does not accept circumstances in mitigation of your culpability, unless they are established on the balance of probabilities.

16 In the present case I am satisfied, as were the jury, that you did not act in self-defence. You stepped forward and into Jack Ellis as he stood on or near the nature strip outside the premises. You grabbed him and hit him, when it was open to you to move back out onto the road as you had invited him to do. If you had stepped back onto the road and he had not followed you, it was open for you to simply leave the scene. It was you who chose to come to grips with Ellis. However abusive his language he had offered you no violence.

17 I am also satisfied that it was dangerous to punch Ellis. First, the lighting was such that there could be no certainty he would see the punch coming as well as he would in daylight. Secondly, he was holding a can in one hand and it was apparent it was likely that he had been drinking that night, even if you did not know how much he had in fact drunk. In those circumstances, there was a very real danger that, as in fact occurred, the effect of the punch would cause him to fall.

18 Thirdly, Jack Ellis was not standing on a football field or other grassed area, with minimal risk of injury if he fell. On the contrary, he was standing on or near the nature strip and both the footpath and the concrete driveway to the premises were immediately adjacent. If he fell backwards, he faced an appreciable risk of serious injury.

19 The result of your attack was the tragic death of a young man. A young man with the same promise of full adult life, which you and the other young people at the party shared.

20 There can be no crueller loss to a parent, than the inversion of the natural order of things, involved in the loss of a loved son. The victim impact statements from Jack's parents and family make clear the lasting emotional pain and personal loss you have inflicted upon them. They are moving and eloquent statements as to the deep and lasting hurt they have suffered and the consequential loss of peace of mind, happiness, balanced family and sense of purpose in life. It is clear that Jack Ellis was much loved and it is appropriate to observe that the grief caused by his death will live with his parents and family for the rest of their lives.

21 The seriousness of the offence of which you have been convicted, is reflected in the maximum penalty fixed by Parliament of 20 years imprisonment.

22 Your actions also raise significant issues of general deterrence. The combination of Saturday night alcohol and violence outside parties and entertainment venues, is one which our society must do all it can to control.

23 The Court, on behalf of the community it represents, must state unequivocally that it regards fist fighting between young men as both senseless and totally unacceptable. Fighting of the sort you engaged in, carries with it the ever present risk of the accidental infliction of serious injury and death.

24 Fighting at the age of 17 when affected by alcohol is at least, if not more stupid and dangerous, as driving at the same age in that condition. It carries with it the same underlying potential for the infliction of the tragic loss of life and serious injury.

25 I turn then to the matters advanced on your behalf by way of plea.

26 It is said first and I accept, that manslaughter is an offence which embraces a very wide range of circumstances and degrees of moral culpability. Your case is not one involving the use of a weapon, or a protracted or a group attack. It is one which involves a tragic accident in the sense that the punch thrown by you was not thrown with any intention to cause its ultimate consequences. Nevertheless the punch itself was not accidental and you must face its consequences.

27 It is next said and I accept, that your offending occurred at a young age, when you did not have the maturity or self-control of an adult. It also occurred in circumstances where you had been using alcohol to some, though not excessive extent and were provoked by vehement and continuing abuse.

28 In turn I accept that because of your age, your rehabilitation must ultimately be a primary factor to be taken into account in your sentencing.

29 That view is further supported by your lack of prior convictions and your personal history.

30 You are the eldest of three boys with a number of step-brothers and step-sisters. Your parents separated some 15 years ago, but you have continued to enjoy a good relationship with both of them.

31 At the age of 14 you moved from living with your mother at Warrnambool to living with your father at Stawell. Part of your motivation in this regard was to have a greater involvement with the local aboriginal community.

32 In turn it appears that you did become involved both with sporting and other community activities and lived the life of a normal teenager.

33 The report which has been obtained from a psychologist, confirms that you do not suffer from any mental abnormality and are of average intelligence.

34 Since the offence in October 2006 you have moved back to Warrnambool. You have obtained a job as an apprentice plumber. You have formed a relationship with a steady girlfriend and you have complied consistently with strict bail conditions.

35 You do not use drugs and use alcohol only on a limited basis.

36 The mother of your girlfriend gave impressive evidence as to the fact that despite initial reservations on her part, you have shown yourself to be a responsible and mature young man in recent times.

37 Since your offence your step-father has died and the evidence is that you have also taken over a responsible role with respect to your mother's two daughters who are both aged under 10.

38 You live with one of your brothers in a flat close to your mother's home, and again have demonstrated a responsible independence in this regard.

39 At the age of 13 you were diagnosed with Type 1 diabetes and you have had to learn to self-medicate and control your blood glucose levels in a responsible manner.

40 Your counsel has tendered a series of references which corroborate the picture of a young man who has progressed substantially in the last two years in terms of maturity and responsibility.

41 In summary you have engaged positively with your family and friends, your employment, the cultural activities of the local aboriginal community, sporting activities, and with those treating your diabetes. You have the support of your own parents, the family of your girlfriend, and your employer.

42 Furthermore, both the evidence of the witnesses called who know you well, and the psychologist's report, describe genuine remorse on your part for the death of Jack Ellis. I accept not only that this is so, but that as a result of a series of deaths in your own family over the last three years, you have a very real insight into the awful finality of what has occurred.

43 The psychologist also expresses the opinion, on the basis of a series of indicators which I accept as reliable, that when seen by her on remand in adult prison you were suffering from anxiety and depression.

44 She says that you impress her as a youth of uncommon maturity. She concludes her opinion by stating of you that:

He is conscientious, complies with strict bail conditions and his otherwise reliable work habits, suggest he would be a good candidate to complete any community based obligation should he be fortunate enough to be granted that opportunity. Otherwise he hopes to be able to continue his apprenticeship plans via Youth Justice. His youth, temperament and criminal naivety would render him incompatible with the environment of an adult prison and there would likely be a worsening of his depression. He can be anticipated to assiduously avoid any future situations where such unexpected and tragic outcomes can occur and there are no driving personality factors such as aggression that would make adhering to such a determination difficult.

45 I accept that you have already undergone significant stress as a consequence of the extended legal proceedings which you have gone through (although it must be recognised that those proceedings must also have involved a process of extended pain for the family of Jack Ellis). You have also now spent a month on remand in the adult prison system which has been of greater than normal difficulty for you by reason of your young age and your diabetic condition.

46 I am left with the difficult task of deciding what sentence is appropriate.

47 Such sentence must embody a public denunciation of the unlawful taking of the life of Jack Ellis, reflecting the sanctity and value of human life to our society.

48 It must also embody an element of general deterrence, directed to demonstrating that the Court on behalf of society does not regard late night fist fights between young people as in any way acceptable.

49 As against these matters, I must balance those circumstances of the offence which render your conduct less culpable and most significantly your youth and prospects of rehabilitation.

50 In my view you have demonstrated an ability to mature and live a good and useful life. In the course of your life you have had to confront the breakdown of your immediate family, difficulties associated with your aboriginality, Type 1 diabetes, deaths within your immediate family, and a regime of strict bail conditions over the last two years. You have done so and succeeded in building a number of positive relationships in a balanced way, by way of employment, within your extended family, in your community and with a steady girlfriend. Further you have no other convictions.

51 I am satisfied that your prospects of rehabilitation are good and that conversely a custodial sentence in adult prison would be adverse to those prospects.

52 This view is corroborated by the pre-sentence report of officers of the Department of Human Services (Youth Justice Section), which expresses the opinions, first that the optimal course for your rehabilitation would be to leave you in the community, and secondly that if this approach is not adopted you are a suitable young person for a Youth Justice Centre order. This latter option is expressed on the basis of a careful report which addresses among other things the need to manage your diabetes.

53 Balancing all the factors I have referred to including the gravity of the offence and the need for general deterrence on the one hand and the desirability of rehabilitation on the other, I sentence you to three years detention in a Youth Justice Centre.

54 Although it is entirely a matter for the Youth Parole Board, I also observe that on the material before me, your case would deserve early review.

55 I declare pursuant to s 18(4) of the Sentencing Act that you have already served a period of 29 days in custody.