R v Hegarty [2011] VSC 262

2 Prior to trial you offered to plead guilty to manslaughter. That offer was rejected by the prosecution. Your trial proceeded, and on 30 March 2011 a jury found you guilty of murdering Mr Hughes.

3 The maximum penalty for the crime of murder is life imprisonment.

4 At the time of your attack on Mr Hughes you were very intoxicated. You were observed by a number of witnesses behaving erratically in the area where the attack occurred. You had taken a prescribed dose of methadone that morning. Of greater significance, you had been consuming alcohol with two female friends throughout the course of the day. A breathalyser test was performed upon you at around 10 pm that night, and expert testimony given at your trial suggested that your blood alcohol level at the time of the attack would have been approximately .19 to .22.

5 An issue was raised at your trial as to whether you had injected heroin shortly prior to the incident. This was a matter relied upon by your counsel both at your trial and on the plea. On the balance of probabilities I accept that you did inject heroin at your friend's flat shortly prior to the attack.

6 Your attack on Mr Hughes was witnessed by Mr Rogers, a mechanic who was test driving a customer's car along the street on which the attack occurred. Mr Rogers saw you punching Mr Hughes to the body with what he described as a "fair bit of force" and also saw you kicking Mr Hughes when he was lying on the ground, again with what he described as "a fair amount of force". Another witness, Ms Gouraros, saw you repeatedly punching Mr Hughes. She described your attack as "vicious". The evidence of both Mr Rogers and Ms Gouraros was tested by your counsel at trial. You did not give evidence. You maintain that you have no memory of the incident. I am satisfied beyond reasonable doubt that the accounts given by Mr Rogers and Ms Gouraros, as set out above, are accurate.

7 Mr Rogers intervened in your attack on Mr Hughes and restrained you at the scene. Both he and another witness, Mr Lindsay Thorn, heard you say something to the effect of either "I just wanted a cigarette" or "I just wanted a cigarette lighter".

8 The autopsy conducted on Mr Hughes revealed a number of injuries which were apparent on external examination. Mr Hughes had bruising on his left cheek near his eye, bruising on his right upper lip, an abrasion on the back of his head, bruising on the back of his left hand, bruising and a skin tear on his right elbow, three abrasions to his right knee, and bruising on his lower right leg. Internal examination revealed that Mr Hughes also suffered bruising to the back of his head, his temple, the left side of his face underlining his jaw, his chest wall, and his right bicep.

9 The fatal injury which Mr Hughes suffered was a fracture to his spine at the point where the neck joins the chest. The medical evidence at your trial established that the pre-existing condition of Mr Hughes's spine was such that a blow delivered with even a minor amount of force could have caused this fatal injury. The most likely cause of this injury was a blow to the front of the head, but any force which caused Mr Hughes's head to project backwards could have produced the fatal injury.

10 You were born in 1976 and are now 34 years of age. You are one of five children. You have an older brother and sister and two younger brothers. Your mother worked as an accountant and your father worked as an accountant and a bookmaker. Your upbringing, insofar as your own family is concerned, was unremarkable.

11 In 2003 you made a report to police to the effect that between 1987 and 1991, that is when you were between the ages of 11 and 14, you were sexually abused by a non-family member who you named. I will return to that report.

12 You maintain that you performed well at school. I was told on the plea that you changed schools and repeated Year 10. You completed VCE and attended Deakin University in the mid-1990s. You did not complete your degree.

13 In 1998, when you were 22 years of age, you were observed by police in St Kilda and you were subsequently placed on a bond at the Melbourne Magistrates' Court on charges of loitering for the purposes of prostitution, using heroin, and carrying a dangerous article. The dangerous article was a lump of wood which police found up your sleeve. That same year you were placed on another bond for two breaches of an intervention order. On the plea I was told that this order, and the breaches, concerned your dealings with a female friend.

14 According to a psychological report which was tendered on the plea, you had started smoking cannabis at the age of 18 and began smoking heroin at the age of 20. By the age of 21 you were injecting heroin. You told the psychologist that the worst period of your heroin addiction was between the ages of 21 and 24 and that you had since been attempting to manage your addiction through methadone and rehabilitation programs but that you had had a few relapses.

15 In 2001 you gave birth to a son, Joshua. You told the psychologist that your pregnancy was the result of a brief sexual encounter. You said that you had never had any significant relationships and you attributed this to the trauma of your childhood sexual abuse.

16 In 2002 your son was removed from your care by the Department of Human Services. On the plea I was told that it was in the context of that situation, that in 2003 you told your parents for the first time of the sexual abuse which you maintain had occurred in your childhood. Your father took you to the police station where you reported the abuse. You did not make a statement and you told police you did not want the matter investigated at that time as you felt you could not cope emotionally with the stress of an investigation.

17 In September 2004, when you were 28 years old, an incident occurred in the block of flats in which you were then living which eventually resulted in you being placed on a bond in the Melbourne Magistrates' Court on 13 July 2005 on charges of assault by kicking, unlawful assault and failing to answer bail. According to the material tendered on the plea, the incident began with an argument between you and a visitor to one of your neighbours. One of the victims of the assaults was a woman who was heavily pregnant.

18 In the afternoon of 21 October 2004 you committed an offence with one of the women with whom you were drinking on the day of your attack on Mr Hughes. That matter was eventually dealt with in the Ringwood Magistrates' Court on 3 March 2005. You were again placed on a bond. The charges were theft and failing to answer bail. The material tendered on the plea indicates that the theft was theft of a roll of wire from the back yard of residential premises. At the time you and your friend were drinking, and had been drinking, cans of bourbon and coke.

19 In late 2005 and early 2006 you undertook residential rehabilitation at a Salvation Army facility named "Bridgehaven". The manager of Bridgehaven at that time, Ms Wright, wrote a letter that was tendered on your plea and also gave oral evidence on the plea. She described you as having been compliant and courteous and determined to improve your position. She said that you stayed in the program longer than was normally the case and that heroin was the primary substance of abuse. She said that the sexual abuse you had reported was known about and that you received counselling in relation to that. You were re-admitted to that program for short periods in 2007 and in 2008 after relapses.

20 In April 2008 your father died. In the history which you gave to the psychologist you date your serious alcohol abuse from his death. That is also what I was told on your plea. Whilst I accept that that is the date from which you see yourself as an abuser of alcohol, it seems to me to be significant that the offences you committed in October 2004 were also committed whilst under the influence of alcohol and whilst engaging in alcohol consumption in an apparently similar way to the consumption which occurred on the day you attacked Mr Hughes.

21 In July 2008 you were involved in a serious violent confrontation with your then neighbours which continued over a number of days. The confrontation involved threats by you to kill and threats by you directed at children in the presence of those children. You also destroyed property. You continued behaving in a threatening and aggressive manner towards the neighbours even after you knew of police intervention and after an intervention order had been served upon you. The offences you committed were dealt with at the Dandenong Magistrates' Court on 21 July 2008. You were convicted of charges of making a threat to kill, threatening to inflict serious injury, intentionally destroying property, unlawful assault, threatening to destroy property, and two breaches of an intervention order. You were placed on a community based order for a period of 12 months. You were required to perform 120 hours of community work and to submit to assessment and treatment for alcohol and drug addiction. On the plea I was told that the confrontation occurred as a result of a dispute over an electricity bill.

22 A report prepared by Corrections Victoria dated 14 November 2008 was tendered on the plea. According to that report, you did not comply with the terms of the community based order.

23 On 1 May 2009 at the Moorabbin Magistrates' Court your failure to comply with the community based order was found proven. On the charges which had been dealt with on 21 July 2008 you were then placed on a varied community based order.

24 At the time you attacked Mr Hughes your son was in foster care. Arrangements were in place for you to have supervised access to him. On the day of the attack you were to meet him for an access visit but just prior to the fatal incident you rang the relevant officer of the Department of Human Services from a phone box and cancelled that arrangement, giving a false excuse. Evidence led at your trial indicated that if you had attended the visit in an intoxicated state you would not have been permitted to see your son. You were in a very intoxicated state at that time. You had argued with one of your friends earlier in the day about whether you were going to see your son that day and about whether you should ring if you were not going to attend.

25 This review of your history reveals a not uncommon pattern of sexual abuse as a child, substance abuse as a young adult, and escalating offending. It also reveals that this violently disproportionate attack on a vulnerable person did not come out of the blue. Somewhat similar incidents have happened before.

26 On the plea the prosecution tendered victim impact statements from the wife of the deceased, Laurel Hughes, and the children of the deceased, Anne Mansfield and Robert Hughes. The victim impact statements were read by the prosecutor.

27 The effect of Mr Hughes's death on his family has been devastating.

"My husband was my soul mate. ... He and I were married for 65 years and since his death, I feel devastated and so alone, so completely alone. ... There are no words to describe my loss, my family's loss. ... He was my life. ... I miss him more than words can say."

"My Dad was the most gentle, non-confrontational man you would ever meet and although he was frail and old it breaks my heart that he had to die in such a violent and unnecessary way."

30 Mr Robert Hughes describes his father as "an absolute gentleman". He refers to "dreadful guilt" which he feels because he had offered to drive him to the shops that day but had allowed his father to persuade him that he needed a walk. He says he has suffered many sleepless nights wondering why he did not drive him that day.

31 Mr Robert Hughes has no reason to feel any guilt. It is not his fault that his father was attacked on a suburban street in the afternoon. You are responsible for that, not him or anyone else.

32 Counsel on your behalf submitted that the sexual abuse you suffered as a child was significant and had a relationship with the substance abuse which has played a role in what he described as the "explosive anger" which you exhibit at times.[1] The following mitigating factors were put on your behalf by your counsel:

(1) He submitted that whilst reckless murder was not necessarily less culpable than murder where there is an intention to cause death or really serious injury, it was significant that the prosecution case as put to the jury was that they could find you guilty notwithstanding an inability to conclude that you wanted or desired to cause really serious injury to Mr Hughes. He submitted that I should proceed on that basis.

(2) He referred to the circumstances on the day and your significant intoxication. He said that this intoxication was part of a long standing substance abuse problem which had its roots in the sexual abuse to which you were subject. He submitted that there was no planning or premeditation in the events and that because of your intoxication your ability to perceive the victim's vulnerability would have been significantly impaired.

(3) He submitted that your trial had not been conducted on the basis that you were not responsible for the death of Mr Hughes and that you had from an early stage indicated an acceptance of responsibility by your willingness to plead guilty to manslaughter.

(4) He submitted that you had a limited prior criminal history.

(5) He submitted that you are presently being held in protective custody and that your time in custody will be more onerous than it is for others because you will be in protection, because of your problems as a result of your sexual abuse, and because of your separation from your son.

(6) Finally, he submitted that whilst current prospects for your rehabilitation might not be promising, there is some evidence, in particular the evidence of Ms Wright, which give grounds for optimism. He submitted that you have made significant efforts at rehabilitation in the past and you will now spend a long period of time which ought to be drug free. He submitted that a lengthy period on parole should be provided for.

33 The psychological report to which I earlier referred was a report of Mr David Ball. Mr Ball expressed the opinion that you suffer from a constellation of anti-social, avoidant and self-defeating personality features that narrowly fall short of the diagnostic criteria for avoidant or anti-social personality disorder. He said the history you gave suggested that your personality deficits have their origin in the sexual abuse you endured as a child. He expressed the opinion that your immediate prospects for rehabilitation remain poor but that during a lengthy custodial sentence educational programs and counselling represent the best prospects for your rehabilitation.

34 On behalf of the prosecution it was submitted that reckless murder is not necessarily a crime of less moral culpability than murder where there is an intention to cause death or really serious injury. I accept that.[2] I do proceed on the basis that this is a case where you foresaw the probability of really serious injury, and not one where you intended really serious injury.

35 It was submitted on behalf of the prosecution that there were a number of aggravating features of this crime being the frail and elderly victim, the attack in broad daylight in a public street, the need for a member of the public to intervene to stop you, and your record which reveals a propensity to violence and an indifference to the vulnerability of victims. It was also submitted that your intoxication was not a mitigating factor and that your offer to plead guilty needed to be assessed in light of the reality that an attempt to avoid all responsibility could hardly have been persisted in given the eye witnesses.

36 By a letter dated 9 June 2011, which was tendered on the plea, Corrections Victoria provided information as to your remand conditions. The letter advises that you were placed on protection due to the nature of the charges against you and your perceived vulnerability, and that you remain on protection. The letter states that protection prisoners have access to programs and services at a generally equitable level to mainstream prisoners but that the level of association with the other prisoners is restricted and access to some activities is limited. Once sentenced your classification and placement will be determined. The letter advises that it is not possible to know how you will be classified in the future. I was also told on the plea that being in protection means that you are entitled to only one visit per week from your son instead of three. Presently, you are in fact visited by him once a month. These matters are properly to be taken into account in your favour, and I do so.

37 Counsel on behalf of the prosecution submitted that the appropriate range of sentence was 18½ years to 24 years' imprisonment with a non-parole period of 16 to 20 years. Counsel on behalf of the defence submitted that the prosecution range started at a point beyond the median indicated by the statistics of sentences for murder and that the end point suggested was far outside the range. I have had regard to the most recently published sentencing statistics.[3]

38 I do not consider that this murder is at the low end of the range in terms of the gravity of the offence. Your level of intoxication is neither aggravating nor mitigating. It is significant that Mr Hughes was an elderly and vulnerable person. Whilst I accept that your perceptions would have been impaired, I do not accept that you would have been unable to perceive that he was an elderly man. I accept that you have a limited prior criminal history, but it is nevertheless the case that that history does reveal prior violence and, in my view, it reveals a capacity for explosive rage which is either unprovoked or an extraordinarily disproportionate reaction to perceived provocation. Specific deterrence is important here. Otherwise, I accept the matters put in mitigation on your behalf. I do take the abuse you reported into account as a factor which explains your mental state and your substance abuse. It does not excuse your conduct that day.[4]

39 Whilst it is impossible not to have some sympathy for a person who, as a result of being preyed upon as a young person, entered adulthood as an angry, substance abusing individual; the fact remains that this is a terrible crime which you have committed. An elderly man, much loved by his wife and family, has been attacked on a suburban street for no real reason and has died as a result. General deterrence and denunciation are very significant factors in this case. No matter what the sad circumstances of the perpetrator might be, the law must be seen to respond to protect the rights of members of the community, particularly those who are frail and vulnerable, to walk the streets without fear of attack.

40 For the crime of murder I sentence you to 20 years' imprisonment and I fix a non-parole period of 16 years.[5] I declare that the pre-sentence detention is 658 days.

[1] R v AWF [2000] VSCA 172 ("AWF") was referred to.

[2] Robert Clifford Barrett v R [2010] VSCA 133 at [24]-[27] and Benjamin James Wilson v R [2011] VSCA 12 at [38]-[40].

[3] Sentencing trends in the higher courts of Victoria 2005-06 to 2009-10, Sentencing Snapshot No 109, May 2011, Murder.

[4] I have had regard to AWF and to GEM v The Queen [2010] VSCA 168 and Bourne v The Queen [2011] VSCA 159.

[5] I am mindful of the fact that the non-parole period is 80% of the head sentence but I consider that a period on parole in excess of four years would be too long.