R v Field [2021] VSC 134

2 The maximum penalty for manslaughter is 25 years' imprisonment.

3 In the late afternoon of Saturday 4 July 2020 you and your partner attended a birthday celebration for your brother at his Bell Park house. A central feature of that celebration was the consumption of magic mushrooms, which contain the hallucinogen psilocin and/or psilocybin.

4 Your brother prepared the mushrooms, grinding and weighing portions into individual glasses. He measured three and a half grams for the men and two grams for the women. He added lemon juice before leaving the mixture to soak for 15 minutes, a process known as 'Lemon Tek' and designed to enhance the effect of the mushrooms.

5 Whilst waiting during this quarter hour, you ate about five dried magic mushroom stalks and two dried magic mushroom heads.

6 At about 5.45pm cold water was added to the glasses. The three male and three female participants then consumed the mushrooms. The onset of the hallucinogenic effect was quite rapid.

7 At about 6.30pm, your group of six went for an hour long walk to a nearby park. To the others you appeared to be quite disorientated. You lagged behind the group, necessitating them stopping and retrieving you. You told the others that they were 'shifty' and 'up to something'. You also, uncharacteristically, spoke of the trauma you had experienced as a child.

8 Upon return to your brother's house at about 7.30pm, you and one other man of the group consumed a second magic mushroom drink. It was prepared by him. About three grams of the ground dried mushrooms were put into each glass and soaked in lemon juice and hot water for about five minutes before consumption.

9 The left over magic mushrooms were later analysed by police and found to contain psilocin and/or psilocybin.

10 Half an hour later, at about 8.00pm, you became emotional and restless. You left your brother's house alone and on foot. You did not thereafter respond to telephone calls and text messages from your partner.

11 At about 8.45pm you arrived at the home of your grandparents, Max and Beryl Field, in Hamlyn Heights. You climbed over the front fence and rang the doorbell. Your grandfather answered the door. You told him you were not in a good way and asked him to come outside to talk, but instead he invited you inside.

12 Together you went to the kitchen where your grandmother was seated. You were rambling and loud, speaking of losing your home and children, to the point where your grandfather assumed you were drunk. He moved to the front bedroom window to see whether you had driven to the address.

13 You smashed an overhead hanging glass light shade before removing your jumper and T shirt. You then pushed your grandmother to ground. Believing, incorrectly, that you had knocked her out, you left her lying on the floor in the doorway between the kitchen and lounge room.

14 You moved to the lounge room and repeatedly kicked the heater before returning to your grandmother, whom you kicked in the stomach. You then smashed a glass cabinet by kicking it repeatedly.

15 Your grandfather entered the lounge room as you smashed other items, including the television, which you pushed over and stomped on. The falling television hit your grandfather in the face. He left the house to seek help from a neighbour.

16 Another neighbour saw you, heard you swearing loudly and called 000.

17 At about 8.55pm you left your grandparent's house and walked a short distance to another address in Hamlyn Heights. There you attempted to smash the window of a Toyota Landcruiser parked in the driveway with your fist. Unable to do so, you used a large pot plant to smash the driver's side window before leaning into the vehicle and attempting to disengage the hand brake. You intended to throw yourself underneath the vehicle as it rolled. Instead you were confronted by the occupant of the house, Andrew Tucker. You told him that you had just killed your grandparents and wanted to kill yourself.

18 You then ran a very short distance along the street before attempting to climb the one and a half metre high metal fence of the Herne Hill Primary School. Your pants were caught on the top of the fence and Mr Tucker, who had chased you, held on to you until police arrived.

19 You managed to remove a star picket of about one and a half metres from a small tree nearby and hit yourself with it several times in the stomach. During the course of your arrest, you told police that you had just killed your grandparents and, swinging the star picket at them, asked police to shoot you.

20 After being assessed by paramedics at the scene, you were taken to the Geelong police station where you were initially deemed unfit for interview. You did participate in an interview later on 5 July 2020 in which you admitted your actions and provided your frank understanding of what occurred.

21 Your grandmother was taken to Geelong Hospital with head and abdominal injuries. She underwent surgery to control significant abdominal bleeding before being transferred to the intensive care unit of the Alfred Hospital. She underwent further surgery but died on 20 July 2020 after withdrawal of a breathing tube. Her cause of death was listed as 'complications of multiple blunt force injuries sustained in an assault'.

22 The family members of Beryl Field who are, of course, also your family members have all declined to write formal victim impact statements. That does not mean that they have not experienced grief and trauma as a result of your actions.

23 Indeed, that hurt is acknowledged in the many letters of support for you authored by members of your family. Your mother, for example, writes that the death of her mother by your hand saddens her beyond belief.

24 Accompanying those sentiments are expressions of forgiveness and support. Your grandfather, for example, writes that he has accepted your apology and holds no grievance towards you. He states that his wife would not want your family to be split by your behaviour. That other members of your family share that view is obvious from the number and content of the letters of support tendered on your behalf.

25 It is necessary to say something of your personal circumstances.

26 You were born in June 1982. You are now 38 years of age. You were 38 years at the time of your offending.

28 You and your partner have been in a relationship for some 13 years. You have four children. The eldest two, aged 16 and 15, are not your biological children, but you have effectively been their father since they were about five and four years old. Your youngest two are aged ten and seven.

29 You are the only child of your parent's marriage. Your father was an alcoholic and left the family when you were about two years of age. Despite having had little contact with him during your formative years, you formed a relationship with him about ten years ago. He is amongst those who have authored a letter of support for you.

30 Your mother formed another relationship when you were about six years of age. That man is the father of your brother. He was controlling and physically violent towards both you and your mother. He was also emotionally abusive of you. That relationship ended when you were aged about 12 years.

31 You were also subject to sexual abuse and humiliation by the brother of your mother's partner when you were aged about seven to eight years. At the time you believed that your abuser's mother was aware of the abuse but turned a blind eye to it. As a result, you believed your abuser when he told you that no one would believe you if you disclosed what was happening. You did not tell your mother about the abuse until you were aged 18 years.

32 Mr Patrick Newton, who prepared a psychological report on your behalf, assesses you to have post-traumatic stress disorder (PTSD) arising from your childhood trauma. It is in partial remission. While that is relevant to the sentencing exercise, you do not rely upon any Verdins[1] considerations.

33 Your primary school experience seems to have been a happy and successful one. Your experience at high school was less so. You were the focus of extensive teasing and derision by your peer group, the sustained nature of which led you to leave school after you had completed year nine, aged 15 years.

34 You then obtained work in a furniture factory. After four years you moved to a sales role in the same company. That employment ended only when the company went into liquidation. You have worked in the hospitality industry. For about seven years you worked a night shift loading trucks. Most recently you worked as a factory machine operator for the same company.

35 At the time of your offending you were about to realise the fruits of your obviously strong work ethic: you and your partner were on the cusp of buying a home and land package. Your incarceration has made achieving that goal impossible.

36 You have a lengthy history of problematic drug use. You told Mr Newton that your use of marijuana as a teenager was to relieve the anxiety caused by the abuse you suffered in your childhood. You quickly began to use the drug regularly and heavily. At the age of about 18 or 19 years you began using MDMA ('ecstasy'), consuming two or three pills most weekends throughout your twenties. You also occasionally used amphetamine ('speed') and tried methylamphetamine ('ice').

37 In your thirties your drug use seems to have been focused primarily on marijuana and MDMA, but you became interested in the use of hallucinogens. You told Mr Newton that you desired an expanded experience and to see what extremes you could cope with. In this context you used LSD ('acid') 25 to 30 times, reporting the experience to be enjoyable and without a 'bad trip'. You also used magic mushrooms twice. On the first occasion, about a year before your offending, you state that you experienced a pleasant, altered state of consciousness together with some hyper-arousal.

38 The second occasion was the evening of 4 July 2020. You recall experiencing a state of considerable agitation and paranoia.

39 You have remained abstinent from illicit drugs since your remand. You strongly express your intention to never again engage with drugs. Indeed, you have expressed a hope to engage with young people upon your release in an effort to educate them about the dangers of illicit drug use.

40 Mr Newton assesses you to have a moderate substance-use disorder which is in remission, in a controlled environment.

41 As a result of the various tests administered by Mr Newton, his assessment is that your mental status is essentially normal. You are of above average intelligence. You are not depressed. You experienced distress at the death of your grandmother as well as shame and guilt for your actions in causing it. He considers that you are in the low-risk range for future violence.

42 Your actions in assaulting Beryl Field on 4 July 2020 had tragic and unintended consequences, but those actions must be denounced. It must be stated very clearly that violence done to an elderly woman sitting in her own kitchen is nothing short of abhorrent. That your behaviour was out of character and that you were experiencing the effect of an hallucinogen at the time simply illustrates the seemingly endless capacity of illicit drug taking to destroy lives. You will forever carry the knowledge that you killed your grandmother. That is your burden. But your actions have also permanently scarred those whom you love. Each of your family members must carry the burden of the death of a wife, mother, grandmother or great-grandmother as well as the burden of knowing that you are responsible for her death.

43 In the circumstances the universal support of your family for you is remarkable. It is a shining example of the power of forgiveness, both for those who have been harmed and you, who has caused harm.

44 Nonetheless the sentence which I impose on you must deter others from acting as you did and express society's strong disapprobation for violent behaviour.

45 You must be sentenced for the crime you actually committed. I find a number of factors to be relevant to the assessment of the objective gravity of your offending and your moral culpability for it. You voluntarily ingested the magic mushrooms, seemingly keen to expand your experiences. That said, you had no basis to know or guess that you would react to the hallucinogen as you did. Your offending was spontaneous and of short duration. You pushed your grandmother to the ground and kicked her once to the abdominal area. That kick was of sufficient force to cause significant injury. Mrs Field was elderly, vulnerable and in her own home.

46 I accept the characterisation of the Crown that your offending is a lower end example of the crime of manslaughter.

47 You entered an early plea of guilty. It involves an acceptance by you for Mrs Field's death and a willingness to facilitate the course of justice. It has significant utilitarian benefit and has spared the family of your grandmother, who are, of course, also your family, the ordeal of a trial.

48 Additionally, I accept your plea is an expression of your genuine remorse for your actions. Your immediate horror at the belief of what you had done was evident in your next actions and, when the effects of the psilocin/psilocybin had worn off, your admissions and statements to police when interviewed. Your ongoing contrition is evident from the many references written on your behalf and in your own letter addressed to the court.

49 It was submitted on your behalf that your prospects for rehabilitation were excellent. In my view they are good. You have used your time on remand productively. You will return to a loving and supportive family. You are assessed as being low risk for future violence. But, while I do not doubt your sincerity in your statement that you will never again use illicit drugs, you do have a long history of drug use. While that did not seem to interfere with your capacity to obtain and retain employment it is, nonetheless, troubling. While you are currently drug free in the controlled, custodial environment, permanent sobriety upon release may be a more difficult proposition. That said, the need for community protection and to deter you from future offending plays little role in the sentencing exercise.

51 I have been referred to two cases said to be comparable to the extent that the offences were committed under the influence of drugs.[2] I have also considered other manslaughter authorities.[3] I have had regard to current sentencing practices.

53 Balancing, as best as I am able, the competing considerations laid down in the Sentencing Act 1991 ('Act') and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment for seven years and six months years. You must serve a minimum of four years and nine months before being eligible for parole.

54 I declare that you have already served 269 days of that sentence by way of pre-sentence detention, including today.

55 I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a sentence of nine years and six months with a non-parole period of seven years.

[1] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[2] R v Martin [2007] VSC 291 and DPP v Arvanitidis [2008] VSCA 189.

[3] In particular, I have considered a number of 'one blow' type cases where the unlawful and dangerous act causing death was momentary and out of character, such as Lee v The Queen [2018] VSCA 343 and R v Sharp [2015] VSC 116.