R v Hanchett [2004] VSC 220

The deceased person, one Phillip De Vries, lived at the caravan park in a caravan situated near to the caravan in which you lived. He had lived there, on his own, in his caravan, for a period of approximately six years before that date. He was aged 49 years, having been born on 27 March 1954.

Supreme Court of Victoria|2004-06-25|Before: KELLAM J

MANSLAUGHTER - Conviction after trial, of manslaughter by "unlawful and dangerous act" - Assault upon deceased consisting of several punches to the head - Prisoner an alcoholic - Sentence of 5 years 9 months with minimum of 3 years 3 months.

You, John Ian Hanchett, have been convicted after trial by jury, of one count of manslaughter. This crime carries a maximum penalty of 20 years' imprisonment. The crime arises out of circumstances which took place at the Wangaratta Caravan and Tourist Park in Wangaratta on Tuesday 18 February 2003.

The deceased person, one Phillip De Vries, lived at the caravan park in a caravan situated near to the caravan in which you lived. He had lived there, on his own, in his caravan, for a period of approximately six years before that date. He was aged 49 years, having been born on 27 March 1954.

You had been a permanent resident at the caravan park for a period of approximately ten months leading up to 18 February 2003. Like Mr De Vries, you lived on your own, in your own caravan.

During the time that you resided at the caravan park, you had become known amongst the permanent residents as a person who played loud music at early hours of the morning and late at night, to the extent that some complaints had been made about you.

Mr De Vries, it would appear, was a quiet man who generally kept to himself and although he was known to you, you and he were not friends.

Several days prior to Tuesday 18 February 2003, you were playing loud music in your caravan at approximately 4.30 in the morning. The deceased man came to your van and asked you to turn the music down. He told you that if you did not, he would return later in the morning and wake you after you had fallen asleep. At about midday that day Mr De Vries returned to your van and banged on the door and woke you. You later told police he had also thrown stones at your caravan.

Some days later, on 18 February, you attended the caravan of a fellow resident in the caravan park and you had consumed at least three bottles of beer, full sized bottles, during the course of the evening. You later returned to your caravan and about 10.30 p.m. you commenced to play loud rock music. Some minutes after this, Mr De Vries approached your caravan and was heard to knock loudly on the door and to ask, (it is said by witnesses that you were asked in a polite manner,) for the music to be turned down. You were heard to yell out "fuck you", in reply to the deceased. You then came out of your caravan and a confrontation took place. Words were exchanged between you before you commenced to punch the deceased.

Mr De Vries, with outstretched arms, tried to push you away, but instead was pushed back away from your caravan. During this time, you were heard to say in an angry tone that you were going to kill the deceased. It is not suggested by anybody that that expression was, in fact, a statement of intention, but it is demonstrative of your anger at the time.

You continued to punch the deceased. The last punch was a round arm punch which struck his head and caused him to fall immediately to the ground onto his back. The deceased, at no stage, punched you.

You then turned away and walked back to your caravan, whilst the deceased remained upon the ground. You seated yourself in a chair and a bystander rang to get an ambulance. Your victim was found by other residents to be unconscious on the ground. He was examined at the Wangaratta Base Hospital. He was found to have a black left eye and he showed signs of an inter-cranial bleed. A CT scan was taken. This showed a left subdural haematoma, a right subdural haematoma and a subarachnoid haematoma. Upon post-mortem, an abrasion to the lip and inner chin, consistent with a punch to the chin was found. A fracture to the larynx was detected. This was consistent with blunt trauma by way of a punch being applied to the neck. There was a fracture of the skull at the left anterior cranial fossa area. The cause of the death was found by the pathologist Dr Burke, upon post-mortem to be head injury.

Dr Burke stated that significant force would be required to fracture the skull. It should be noted that it is also likely that some of the brain damage was caused by the deceased falling to the ground and striking his head.

The deceased man was later found to have a blood alcohol content of .09 per cent.

You told police that your intention was to "win the fight", as you described it, so that you did not get beaten up. You told them that you intended to hit your victim to the head and that if you wanted to, you could have ended the fight by walking away. You told police that you believe you were more sober than the deceased and that you hit him "about six times." You told police that you can "hit pretty hard", to use your words, and that you hit him about three times to the temple with your right hand and two times with your left hand.

This is a serious offence with tragic consequences.

The unlawful killing of another human being is a matter which our society, and the courts through which society is represented, regard with the utmost seriousness. Not only through the sentences which are to be imposed, must sentencing judges express our community's rejection and condemnation of the resort to violence of the kind in which you engaged, and which can have, and did have in this case, such tragic consequences. Courts must also attempt, insofar as they are able to do so through the sentencing process, to deter those who may be inclined to engage in such behaviour.

In this case, an apparently decent man has died by reason of your unlawful and dangerous act in punching him, all over a minor dispute. I have read the victim impact statements. They are from his mother, his nephew and his brother. Each of them is a moving testament to the effect that the loss of the life of Phillip De Vries has had upon each of them. They confirm other evidence before me that the deceased was a likeable, pleasant and decent man. His loss is a heavy burden to his mother and in particular to his nephew, who has no parents and who clearly was dependent for emotional and other support upon his deceased uncle who he described as his "best friend". His loss is described eloquently in these mature words. "I wish I could get angry; angry at John Hanchett for killing my uncle, but I just cannot. To me it doesn't matter who killed my uncle, I just miss him so much." As I said, in my view, they are mature words.

The death of Phillip De Vries is a tragedy for the community and an almost unbearable loss for his family. Not surprisingly, they find it difficult to comprehend that the death occurred in circumstances of a dispute about loud music.

That said, however, the crime of manslaughter occurs in a wide variety of circumstances. There is, of course, no suggestion whatsoever that the dreadful consequences of your behaviour were, in any way, intended by you. You are to be punished for the harm caused by you, rather than for an intention to bring that harm about. Clearly, as I have said, you had no such intention. You told police that you saw it as "a fight".

Each case and each offender must be viewed in the light cast by all of the circumstances relevant to the situation. In your case, as has been pointed out by your counsel, Mr Morrissey, there are a number of mitigating factors. I accept that you were, in general, frank to police about your actions and that your expression of sorrow about the tragic consequences of those actions was a genuine expression.

Notwithstanding the defence conducted by you to the charge of manslaughter on the basis, partly, of self-defence, which was rejected by the jury, I accept that there is some degree of remorse which was expressed by you to police and which was genuine.

I have been told something of your personal history and your circumstances. You are now 42 years of age, having been born on 1 February 1962. You lived most of your early life in Camperdown. You attended Camperdown Primary School, but left halfway through Year 9.

You got into trouble with the law in relation to car theft at the young age of 14, and thereafter, spent some time in Youth Training Centre.

You went to Perth at the age of approximately 20 and worked in carnivals and as a road train driver and in other itinerant work for many years. You have worked as a farm labourer and as a fruit picker.

It does appear that you have, in general, throughout your life, been industrious in a number of itinerant occupations.

You returned to Victoria about four years ago and have engaged in itinerant employment from time to time in this State.

You have admitted before me some 36 prior convictions which generally relate to matters of dishonesty and road traffic issues, and in particular, to driving without a licence or driving whilst suspended. Although these convictions are relevant in terms of your general character and in terms of demonstrating, in particular, that you have had difficulties with excessive alcohol consumption over many years, they bear no particular adverse relevance to the offence of which you have now been convicted before me. Indeed, it is notable that despite your other offences, you have never been convicted of any offence of violence.

It is apparent that you have, however, as indeed you frankly and honestly told police, been involved in fights over the years. This, no doubt, arose in the circumstances described by you of the culture of the community in which you lived in remote parts of Western Australia in particular. But there is no suggestion in your record that you are a violent person by disposition.

Evidence was given before me by your mother, who told me that you were a kind and gentle son as a child and furthermore, that you are welcome to return home when you are able. Regrettably there is really no explanation for what happened early in your life and why it was that you left what appears to have been a loving and stable home and got yourself into such difficulties in your youth.

A report prepared by Mr Healey, psychologist, was tendered before me. He has examined you recently. It should be noted that records of the Wangaratta Base Hospital were tendered before me. I will refer to them in some detail soon. They have relevance to your medical background and were not available to Mr Healey at the time of his examination of you on 20 June 2004.

Mr Healey conducted IQ testing and he also conducted an alcoholism screening test. He found that you had a full scale IQ of 107. In particular, your non-verbal IQ was found upon testing to be 114, which is considerably above average.

The alcoholism screening test revealed problems associated with chronic alcohol abuse. The symptoms described by you to Mr Healey included the fact that you cannot stop drinking, once you have begun, that you drink before noon and that you have neglected your obligations to work and that you have lost work due to alcohol abuse. Although the evidence before me is not entirely clear it appears that you have been diagnosed with some liver pathology and that you have suffered withdrawal symptoms during your time in custody, involving some nausea and hand shaking. You have been admitted to psychiatric units in this area in the last three years, apparently for depression linked to alcohol abuse, and related to you discontinuing your medication for epilepsy from which you suffer.

Personality testing conducted by Mr Healey was indicative of mild depression. He concluded that there had been some settling in your emotional state during your 16 months on remand, during which period you have been required to abstain from alcohol and during which period you have undergone some education and had an adequate diet.

Mr Healey concluded that you have never really established a lasting, meaningful relationship. He described "some isolation" in your life in that you preferred your own company and appeared to derive companionship from pet dogs and the "dubious solace provided by alcohol".

He noted that since being in prison, your "adjustment", to use his word, has improved and you are now experiencing self-reproach over the tragedy that occurred in February 2003 which, at the time, you regarded as just another fight.

Mr Healey noted that upon your release you intend to return to the type of existence you had previously lived, that is living in a caravan. You apparently agreed with Mr Healey, however, that you may need psychological/psychiatric intervention in view of your disposition to become depressed and to engage in binge drinking.

Mr Healey concluded that clearly you will need assistance to enable you to contain your alcohol consumption and to offset the depression associated with that alcohol abuse and your feelings of isolation and despondency.

As I stated before, the records of the Wangaratta Base Hospital were placed before me. Those records reveal that you were admitted to the psychiatric unit of the Wangaratta Base Hospital on 5 June 2002, due to low mood and expressed suicidal ideation. You told those who attended you at the hospital that you had spent ten days in bed with poor sleep and appetite. You were reported as having "sometimes lost control."

A history was given by you of asthma, epilepsy, hepatitis C and depression with two past suicide attempts. You were observed upon admission to be dishevelled but cooperative. You described a symptom of believing that people were staring at you. You spent overnight in the unit and the next day you stated that you felt safe and that your suicidal ideation had ceased and you were discharged home. The diagnosis on this occasion was that you had suffered a psychotic episode in the context of alcohol abuse.

It should be noted that the records also contained the material provided to the Wangaratta Base Hospital by Goulburn Valley Health, in relation to an admission, apparently at Shepparton Hospital on 23 January 2002 when you made complaints of feeling not able to control yourself, of intentions of harming yourself and occasionally an intention of killing others.

The history given by you on that occasion was that you had suffered depression for three to four years and you took antidepressants and anti-epileptic medication which you had ceased taking some days earlier. It would appear that you were admitted for a brief period of time and prescribed antidepressants.

Subsequently on 29 July 2002, you were again admitted to the Wangaratta Base Hospital, Kerford Unit. It would appear that you ceased taking your anti-epilepsy treatment some five days earlier and had become isolated in the several days before being admitted. You were discharged home two days later, on 31 July 2002 with encouragement of the necessity to continue your medication, and in particular, your anti-epilepsy medication.

No psychiatric symptoms were noted at this time. However, the nursing notes which were tendered before me contain an insightful record, dated 30 July 2002, and I quote. "John's thinking is very concrete and it cannot be dented on any issue. Says he has grown up with drinking and violence and it is a part of his life. Prefers to live alone and work when he can, as long as people leave him alone. His life stories are incredible, but he seems unable to learn to avoid repeated conflict with the law, with other people or employees. He does not intend to change. If he feels angry, he hits people and justifies it as okay from his point of view. Says he keeps control so that he doesn't kill anyone, but fears he will one day. Says he'll take medication for now, but I think he will stop it again at some stage. He intends to stay in Wang", (i.e. Wangaratta), "until his community work order is completed. Perhaps his ongoing fear of killing someone and his concrete insightless thinking could be construed as psychotic, but I think this is how his personality has developed and this is how he is."

Let me make it clear that I do not place great weight upon any opinion expressed in that quote by the psychiatric nurse who made the note. Nevertheless it must be acknowledged that the opinion about your personality is not inconsistent with the other evidence before me.

However, what is of great relevance is the fact that clearly you were telling people of your concern about your lifestyle. That raises two issues of relevance. One is that you were not provided, it would appear, with any psychiatrist assistance. On the other hand you appear from what the note says you said to the nurse in question, to have been not prepared to change, notwithstanding your obvious insight into your behaviour. Clearly your insight into the risks your lifestyle imposed, consistent with the evidence of your sound intelligence, was of a high level. It is tragic indeed that you either chose not to change, or alternatively, and I am unable to find which, you lacked the capacity to effect change in your life.

Apart from your being encouraged to remain on your anti-epilepsy medication, there is no evidence of any other treatment being provided to you, subsequent to this admission to the Wangaratta Base Hospital in July 2002.

The material before me does demonstrate, as I have said, that you have some history of recurrent attempted suicide, asthma, epilepsy and depression. There is a suggestion in a report provided by the Beechworth surgery to your instructing solicitor dated 23 June 2004, that you had a history of bipolar affective disorder, but there is little other evidence before me in relation to this matter.

Your counsel, Mr Morrissey, submits that this psychiatric history is such that the relevance of the sentencing principle of general deterrence should be sensibly moderated in your case. I accept that there is some, but not overwhelming weight, in this submission. The evidence suggests that alcohol has much to do with your situation, and your conduct, and your level of culpability must be viewed in that context, which to some extent, mitigates your personal culpability. However, I do not consider that the evidence demonstrates this to be a case where you suffer from a frank mental disorder. In such circumstances, it does appear to me that issues of general deterrence remain a matter of significance in terms of sentencing you.

Once again the community has suffered the loss of one of its members by violence being used in the course of the resolution of what can only be described as a minor dispute.

Regrettably the use of violence to resolve or to determine issues of minor importance between members of the community, particularly in circumstances which are either inflamed by or disinhibited by the use of alcohol, is common. Those who are inclined to use violence to resolve such difficulties must understand that if, as here, tragic consequences become the result of the use of unlawful and dangerous behaviour, then the law will treat the matter as most serious.

Likewise, the issue of special deterrence is not a matter without significance in your case.

Although I accept, as is quite clear from the material before me, that you have no previous conviction for a violent offence, it does appear that you have been living, at least part of your life, in a culture where violence is used in a variety of ways.

In terms of rehabilitation, it appears to me that the likelihood of your re-offending will be much reduced if you take suitable steps in relation to that rehabilitation and in particular, in relation to the consumption of alcohol by you. It appears to be clear however, that unless steps are taken by you in this regard, the prospects of rehabilitation are not such that great confidence can be expressed about them.

I note that you have made some progress in prison. I note, indeed, that you made no application for bail and that throughout your time in custody awaiting your trial, you have been alcohol free.

Mr Healey considers that during your time in custody your health has improved. There is indeed no suggestion whatsoever of any psychiatric issue having arisen whilst you have been in custody and alcohol free. That, no doubt, underlines the connection between any mental aberrance from which you suffer from time to time and alcohol. You have undertaken a number of courses in prison, including the group depression program and the Moreland Hall alcohol and driving education program. I consider that Mr Morrissey's statement that there are both "hopeful signs" and "worrying signs" about your rehabilitation is entirely accurate.

You expressed to Mr Healey your desire to resume your former lifestyle. That is a matter of some concern unless you understand clearly the effect of alcohol abuse in the context of that lifestyle. What you said to the psychiatric nurse in the Wangaratta Base Hospital in July 2002, leads me to conclude that you do understand the consequences of alcohol abuse in your life. But whether you are committed to make any change, notwithstanding the tragic death of Mr De Vries, is far from certain at the moment.

That is, in my view, and indeed as submitted by your counsel, a strong argument for a sufficient period of conditional release which will have the effect of supervising your reintegration back into the community. It will, in due course, be a matter for the Adult Parole Board as to whether they release you on parole, and as to any conditions they might impose upon you. But it may be that one condition will involve severe curtailment upon your capacity to abuse alcohol during any parole period.

Nevertheless, as well as matters personal to you, such as your chances of rehabilitation and issues of special deterrence, as I have already said, the issues of general deterrence and the issues of protection of the community from you are of relevance. Furthermore, I am called upon by the Sentencing Act to impose a just punishment.

This is a serious offence and as properly conceded by your counsel, I have no alternative but to impose a sentence of imprisonment upon you.

I sentence you to five years and nine months imprisonment and I direct that you not be eligible for parole until you have served a period of three years and three months imprisonment.

That, in my view, will give you an opportunity for a significant period of supervised conditional release into the community.

Pursuant to s.18 of the Sentencing Act, I declare that you have served 494 days in custody in relation to this matter and I direct that that matter be noted in the records of the court.

Furthermore, I order pursuant to s.464ZF(B)1 of the Crimes Act, that the forensic sample and any related period and information obtained pursuant to the informed consent given by you on 19 February 2003, be retained for placement on the data base. Having considered the circumstances and the seriousness of the offence, I am satisfied in all the circumstances, that the making of the order is justified by reason of both the seriousness and circumstances of the offending and by reason of your prior convictions and by the fact that the order is by consent. In my view the granting of the order is in the public interest and should be made.

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