R v Johns [2003] VSC 415

Supreme Court of Victoria|2003-10-28|Before: NETTLE J

Criminal law - sentencing - manslaughter - young person involved in melee - unprovoked martial arts kick to the head of the victim - sentence of six years with non-parole period of three years and six months - Sentencing Act 1991, ss. 3 and 32.

2 You were born on 23 January 1983, so that you are now only 20 years of age, and when the offence occurred in the early hours of 1 June 2002 you were only 19 years of age. Aaron Linskens was born on 17 December 1983, and therefore when you killed him he was only 18 years of age. The offence occurred at a large south-eastern suburban hotel of the sort at which large numbers of young people congregate in order to drink and socialise and enjoy live entertainment. You committed the offence shortly after closing time at about 2.00am, after you and the deceased and many other patrons had been served significant quantities of alcohol. There was a melee of a sort, which was not unusual at closing times at that hotel, and you were one of the participants.

3 As was customary on Friday evenings, beginning at about 6.00 pm on Friday 31 May 2002 a number of your friends gathered together with you at your mother's home in Rowville, where you drank and conversed for a couple of hours. Thereafter some of your friends were collected and driven by another friend to the hotel and you and the remainder of your friends were driven by your mother to the hotel, arriving there at about 11.00 pm. After waiting for some time in the queue, you and your friends were admitted to a section of the hotel called "the Sports Bar", and there you remained drinking and socialising until closing time at about 2.00 am the next morning.

4 Meanwhile, at about 6.30 pm on Friday 31 May 2002, Aaron Linskens, Nick Gisonda, Kane McGugan, Shaun O'Connor and other friends of the deceased began to gather at the O'Connor home, where they drank and conversed and planned the remainder of the evening. At sometime that evening they travelled to the Wheelers Hill shopping centre and a number of them spent a short time there together, and then they too travelled by one means or another to the hotel, arriving there at about 10.00 pm, and they gained admission to the Sports Bar. Like you, most of them remained in the Sports Bar drinking and socialising until closing time at 2.00 am.

5 That night, as on most Friday nights, the Sports Bar was filled to capacity with a crowd of somewhere between 550 and 600 patrons variously drinking, dancing to live music, playing on billiard tables or watching sports telecasts on large-screen television sets installed within the bar. By all accounts the crowd was relatively well behaved for most of the evening and until closing time there were few if any incidents that caused the crowd controllers much concern.

6 Trouble began, however, soon after closing time as security staff herded patrons out of the Sports Bar and into the very large car park which surrounds the hotel. Remarkably, only one exit was permitted to be used - the others being locked shut lest patrons of the adjacent poker machines area be distracted from their operation of the machines - and, as had happened more than once on previous occasions, the pushing and shoving through and around the single exit and the level of intoxication among a number of the patrons led first to irritation, and then to small scuffles and fights and then to larger incidents outside near to the exit.

7 The deceased was not a participant in those early incidents. He was seen standing observing one of the incidents and he was asked to stand aside in order to enable a crowd controller to move in and break it up. But there is no evidence that he was involved in the incident and a number of witnesses gave evidence to the contrary. You were involved in one of those incidents. There is evidence, which I accept, that you launched yourself from the bonnet of a car parked near to one of the incidents, into the fight with a downward punching action.

8 As matters developed, the four crowd controllers stationed outside the Sports Bar soon found themselves outnumbered and unable to stop the fighting. They found that as soon as they managed to break up one of the incidents others would start up almost immediately and, as some witnesses described the scene, the situation developed rapidly to the point where fights were going on all over the car park, like a soccer riot, with people running, screaming, yelling and fighting at many points.

9 One group of combatants moved south-east in the car park and then south along Springvale Road towards a car dealership adjacent to the hotel. Another fought its way down to the north-eastern boundary of the hotel and then crossed Springvale Road in order to continue fighting in the Brandon Park shopping centre. A third group of somewhere between 15 and 20 people formed in the car park near to a grassy knoll at the eastern boundary of the hotel. There was pushing and shoving between them, with some fighting between a couple of them, and a larger number of people surrounding them observing the action.

10 After a time the deceased moved with at least two of his friends, Nicholas Gisonda and Shaun O'Connor, from the place where he had been observing the incident near the Sports Bar exit and they walked down towards the knoll to observe the action. They were followed at some distance by their friends, Linda Mirams, Tyrone Beck, and Achille Moss. You approached the deceased as he stood in the car park on the pavement near the knoll and you kicked him in the head with a spinning martial arts type kick which was described by many witnesses as a "round-house kick".

11 The kick caused the deceased to fall immediately head first to the ground. The impact upon his head on contact with the car park pavement inflicted massive head injury and a build up of brain damaging pressure which was the cause of his death. According to some of the evidence, the deceased may have retained or regained consciousness momentarily after contact with the ground, or perhaps for some slightly longer period of time. Nevertheless, within minutes the brain damage resulting from the impact caused him to pass into a coma from which he never recovered. He died in hospital on Sunday 3 June 2002 at or about 1.15 pm.

12 It was alleged in the plea made on your behalf that the deceased became involved in the action before you kicked him and that you were reacting spontaneously to what you perceived to be the threat of something which he said or did. It was said that I should be satisfied that you were acting defensively and with no more force than you conceived to be necessary to protect yourself from the danger which you perceived. It was noted that you did not know the deceased, and therefore did not have a motive to wish to hurt him, and that there was evidence that the kick which you used was of a defensive variety and that the post-mortem examination results were consistent with that conclusion. It was also submitted that your lack of resistance upon being apprehended by crowd controllers bespoke a lack of malice and that the concern which you showed some hours later, when you learned that the deceased's condition was critical, confirmed that you acted without malice. It was contended that your actions should to be judged on that basis and in light of what were described as the difficult and unsettling circumstances in which you found yourself in the hotel car park, in semi darkness, in the early hours of the morning, and after you and the deceased and many of those present had had a considerable amount to drink, with mayhem going on all around.

13 I do not accept that the deceased did become involved in the action, or that the deceased said or did anything towards you which constituted a threat, and I do not accept that you perceived the deceased to be any sort of threat.

14 The deceased's friends Linda Mirams, Tyrone Beck, Nicholas Gisonda, Achille Moss and Shaun O'Connor all gave evidence that he did not become involved in the action - that he simply attempted to observe the action as he passed by it or stood near to it - and an independent witness, Benjamin Osborne, and one of the crowd controllers, Lote Vumibaka, gave evidence that they saw the deceased standing passively with his arms at his side watching the action when you kicked him. Another independent witness, Michael Orchard, gave evidence that the deceased became involved to the extent of endeavouring to restore order by standing between two of the combatants. But I reject his evidence as unreliable. Mr Orchard was standing some 15 to 20 metres away from the conflict at the time of making the observations about which he gave evidence, and he was standing in semi-lit darkness after consuming not less than seven beers on his own admission. Although Nicholas Gisonda and Shaun O'Connor were friends of the deceased, and therefore may have had that as a motive or indeed had other motives to see or recall events more favourably to the deceased than was warranted, they were standing within feet of the deceased at the time of making the observations about which they gave evidence and their evidence was in significant respects corroborated by the testimony of Mr Vumibaka, whom I regarded as a most impressive witness.

15 Another of the crowd controllers, Matthew Studd, gave evidence of seeing you and the deceased facing up or facing off to each other before you kicked the deceased. And yet another of the crowd controllers, Jahid Zamani, gave evidence of his perception of you and the deceased facing each other abusing each other in the instant before you kicked the deceased. But Mr Studd did not suggest anything in the nature of aggressive conduct by the deceased and Mr Zamani's evidence as to what he heard and saw was very confused. At one point Mr Zamani said that you and the deceased were abusing each other. At another point he said that that was simply his impression, because the two of you were facing each other, and at another point he said that he did not see or hear you or the deceased do or say anything before the offence occurred. All of the other witnesses as to what occurred, including Mr Vumibaka and another independent witness, Mr Osborne, gave direct evidence that they did not hear anything said. Apart from them the only other point of note was a concession wrung from Nicholas Gisonda in the course of cross examination - that he could not exclude the possibility that the deceased said something to you - but as he made plain he did not hear the deceased say anything.

16 I do not regard your lack of knowledge of the deceased as particularly significant. Plainly, you did not have a rational motive for wanting to hurt him but, as juries are told all the time, the fact that there is no apparent motive for a crime is rarely determinative of intention. I also doubt that your reaction towards the crowd controllers says much about your intentions towards the deceased. Among other considerations, the fact that you fled as soon as they released their grip upon you suggests that your apparent passivity and cooperation were really just subservience. Your subsequent manifestations of concern seem to me to be equally equivocal. I was invited by your counsel to act upon the basis of what was said about that subject in the depositions, but as I read what is recorded of the events which followed the offence, they say a good deal more about your concerns for your own predicament than for the plight of the deceased.

17 I regard the evidence as to the nature of the kick is indecisive. As far as it goes, it establishes no more than that the sort of kick which you used can be deployed both defensively and offensively. And while it is true that the post mortem report is not inconsistent with a glancing kick of limited force (in as much as there is no record of any observed sub-cutaneous haematoma in the facial region of the deceased's head), I do not regard the report as inconsistent with the application of a blow of considerable force. As I read it, surgical intervention may well have disguised the effects of a blow landed otherwise than on the face of the deceased. Furthermore, there is abundant eye-witness evidence in the testimony of Moss, Osborne, Studd and Vumibaka that the kick was one of such force as to knock the deceased straight to the ground.

18 I accept that the deceased did walk to and stand near the action and that he may have been standing so close to the combatants as to appear at least to some observers to be attempting to break up the conflict. I also accept that in some fashion or another the deceased and you finished up standing close to one another, face to face, as deposed to by Mr Studd and Mr Vumibaka. But the evidence does not establish that the deceased became involved in the conflict, either as a combatant or by endeavouring to break up any of the combatants, or that the deceased said anything to you or you to him. There is insufficient basis to infer that you perceived the deceased to constitute any sort of threat to your safety.

19 In formulating the sentence to be imposed upon you, the law requires me to balance the factors which militate in your favour against the nature and gravity of your offence, your culpability and responsibility for the offence and current sentencing practices. The Sentencing Act 1991 obliges me to identify and address your character, the prospects of your rehabilitation and such other factors as may bear upon the mitigation of penalty. At the same time I am bound to impose a sentence that expresses the community's denunciation of the type of conduct in which you engaged and which provides deterrence against a repeat offence by you and against similar offences by others.[1] The interests of victims, and their families, and the consequences to them of the criminal conduct are further matters of particular importance in the sentencing process.[2]

20 The maximum sentence for the offence of manslaughter is 20 years imprisonment. The circumstances which may give rise to a conviction for manslaughter are, however, so various and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases[3]. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability, and because manslaughter covers such a wide range of circumstances, and includes both voluntary and involuntary acts of homicide, the range of penalty is very wide indeed.[4]

21 It was submitted on your behalf that the manslaughter of which you have been found guilty lies towards the less serious end of the scale. Reference was made to some recent cases of unlawful dangerous act manslaughter in which a knife or other weapon was used and where there were other aggravating circumstances.[5] It was submitted that this case is very much less serious, because you did not use a weapon and because the death of the deceased was due in no small part to the fact that he happened to fall head first onto a hard paved surface. It was contended that you are not to be punished as if you had set out deliberately to drive him head first into the ground.

22 I accept that you are not to be sentenced on the basis that you set out to achieve the result which occurred. The Crown's acceptance of your plea of guilty to unlawful dangerous act manslaughter ended any suggestion of intention to kill or to inflict really serious physical injury. But I do not accept that the manslaughter which you committed should be regarded as lying towards the less serious end of the scale. In my judgment it is a serious case of unlawful dangerous act manslaughter[6]. You were a good deal older than the offenders in two of the cases mentioned. You delivered a powerful martial arts kick to the deceased's head for no better reason than that he happened to be standing observing some sort of conflict in which you had an interest. You were trained in martial arts and you knew by reason of your training of the damage which the kick was capable of inflicting. Your ability to deliver that sort of kick was a weapon in itself. It was obvious that the kick was dangerous, as indeed by your plea you have admitted and, as is so often the case when dangerous acts are committed, the danger came to pass.

23 I accept that the environment was dark and unsettled and I accept that you had had a considerable amount to drink and possibly that you were in a heightened state of excitement by reason both of the alcohol which you had consumed and the fighting which was going on around you. But on the evidence which is before me, the deceased did nothing to warrant your attack - he was standing watching what was going on - and even if he had said or done something in the way which was suggested (but was not borne out by the evidence), there would still have been no need or justification to do what you did. In those events you would have had only to turn and walk, or run away with the speed that you had come upon the conflict, to keep yourself completely safe from harm [7].

24 The fact as I find beyond reasonable doubt[8] is that you were the aggressor. You took calculated and cowardly advantage of your martial arts skills in order to kick the head of an untrained and unsuspecting victim. You chanced to do so as he stood flat footed and partially inebriated[9] on a bituminous concrete surface. And you did so for no better reason than such perverse gratification as might be derived from kicking him in the head. Really, the only thing which can be said in mitigation of your conduct is that you were young and to some extent under the influence of alcohol and within close proximity to a number of other people who were engaged in acts of violence.

25 A psychological report submitted on your behalf records that your father died when you were only 14 years of age and that you were the one who discovered him. It is said that that has been a significant issue of concern for you and that you can still recall in detail the nature of the discovery. It also records, however, that you were successful at secondary school, in that you completed year 12 and began a course of tertiary study before deciding to take a gap year, and that you were successful in sport in football and basketball, and that you have many friends. You have held down a part-time job since the age of 14 and you were working full-time in a warehouse at the time of the incident. Your supervisor has given evidence on your behalf in which he praised you as an excellent and reliable worker whom he would be happy to recommend to any employer. Since the age of 14 you have to a large extent been the man in your mother's house and a considerable support to her. You have no history of drug abuse or other difficulties or mental disorder. Mr Joblin, forensic psychologist, has expressed the opinion that while you were distressed by the death of the deceased you have strong support from your family and an optimistic prognosis. He is concerned, however, that you may be prone to excessive consumption of alcohol.

26 It counts in your favour that you pleaded guilty to the offence of manslaughter by unlawful dangerous act, and I consider that you are entitled to a discount on the sentence to be imposed upon you in recognition of your plea. The plea was first offered at the end of the committal.

27 Evidence has also been given on your behalf that since you were incarcerated in June 2002, you have been a model prisoner, who has worked in a responsible position in the prison kitchen every day except Christmas Day, and that you have thrown yourself enthusiastically into a range of self-improvement programs including anger management, consequential thinking, offending behaviour, relapse prevention and alcoholics anonymous.

28 As against that, on 19 July 2001 you were found guilty of charges of causing injury recklessly, assault by kicking, and assault in company, and the charges were adjourned for a period of 12 months on condition that you perform 20 hours of unpaid community work. In that incident you kicked the head of a householder who had gone to the assistance of your co-offender when he fell intoxicated in the front garden of the victim's home. In October 2001 you were involved in a further incident, at the Hallam Hotel, in the car park in the early hours of the morning shortly after closing time. In that incident you broke the nose of someone whom you told police was egging you on to fight. You were not charged over that incident, but you admitted to police that you had hit the victim and that the degree of force which you used was consistent with the broken nose, severe headaches, confusion, extensive nose bleeding and closed head injury which the victim sustained. When you killed the deceased the charges of which you were found guilty on 19 July 2001 still stood adjourned.

29 The starting point in the formulation of the penalty to be imposed upon you is that every case of manslaughter involves the felonious taking of human life[10]. Your offence is made worse by the fact that the life which you took was a young one. The consequences of your conduct are terrible. You have deprived a young man of your own age of the chance of the rest of his life, and the effects of his loss upon the members of his family can hardly be imagined. His father, for example, has written in his victim impact statement:

"Grief is such a selfish overwhelming thing. I think about my name, I felt so proud that Aaron would carry on the family name. Now that has ended with Aaron's death. Guilt sets in, why didn't I spend more time with Aaron, why didn't we do this or that, why did I discipline him for now what seems like small unimportant matters. Thank God I told him I loved him the night he went out for the last time."

"When, after the funeral they put Aaron's blue stainless steel coffin into the ground, I cannot describe how I felt, it was the end, and he was the last son in our line. He had always loved to look at the phone book and point out, `look mum we are the only Linskens in the book.' My precious only son is dead...I am dead inside."

The deceased's sisters and his grandparents and his aunt have also filed victim impact statements which are filled with outpourings of loss and bewilderment.

30 I have mentioned already factors which weigh in your favour. Your youth, your work ethic and your resolve to make the best of the lot in which you now find yourself suggest that you are remorseful over what you have done and that your prospects of rehabilitation are fair. I treat your plea of guilty as a further sign of remorse. But for the reasons already expressed, I consider that the level of your culpability and responsibility are high. You were given a warning when you were found guilty of offences on 19 July 2001. You had what was in effect a second warning in connection with the incident in which you were involved in October 2001. Despite those warnings you chose to deploy your martial arts skills for the gratuitous infliction of injury upon the deceased and for no better reason than the fun of it. The result of your delinquency was his death.

31 An offence of the kind which you committed warrants denunciation, and the need for deterrence is obvious. The sentence to be imposed upon you must reflect the seriousness of your conduct and its consequences, and thus in my judgment it warrants a substantial period of detention.

32 You are of course a "young offender" within the meaning of the Sentencing Act[11], and accordingly it has been submitted on your behalf that I should sentence you under section 32 of the Act to a period of detention in a youth training centre in lieu of imprisonment. Anne Louise Hooker, who is a youth development officer stationed at Port Phillip Prison (where you are at present incarcerated in the youth section), has given evidence on your behalf that she is concerned about the effects which adult prison might have upon you. In her opinion you would be vulnerable to manipulation in mainstream prison because of your innocence and naivety. Your counsel has submitted that you would find gaol particularly distressing and that you would be vulnerable to attack and abuse by more experienced prisoners.

33 I need no persuading that the effects of adult prison upon a young offender are to be avoided if at all possible. As a matter of common sense it is obvious, and as a matter of authority, in R v Mills[12] the Court of Appeal remarked that youth of an offender for sentencing purposes is a primary consideration and that in the case of a youthful offender rehabilitation is usually far more important than general deterrence. As the Court observed, punishment may in fact lead to further offending, and therefore, individualised treatment focusing on rehabilitation is often to be preferred, and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. As a rule, therefore, a youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality or, to put it as counsel did in submissions on your behalf, the benchmark of what is sufficiently serious to justify adult prison in the case of a youthful offender may be quite high.[13]

34 But all that having been said, I do not consider that a youth training centre order is appropriate in this case. The maximum period for which I could sentence you to be detained in a youth training centre would be three years[14] and, although current sentencing practices dictated by the Court of Appeal are to treat young offenders with remarkable leniency, even for offences as grave as that which you have committed[15], I do not consider that a head sentence of three years detention should be regarded as near to adequate. The period could perhaps be increased in effect to as much as four and a half years, by making an order under s. 35(1) of the Sentencing Act that your pre-sentence detention not be reckoned as a period of detention already served under the sentence[16]. But in my judgment even that length of time would fall considerably short of what is required. Of course, it will be open to the Adult Parole Board to order that you be transferred from prison to a youth training centre pursuant to s. 244 of the Children and Young Persons Act 1989, and in those circumstances I propose to forward the relevant papers to the Board for their consideration. But any decision of that kind is a matter entirely for the Board, when and if they choose to make it.

35 Balancing as best I am able the competing sentencing considerations laid down in the Sentencing Act, allowing for your plea of guilty and the discount to which you are entitled for it, and giving full weight to your youth, character, apparent remorse and prospects of rehabilitation, I have concluded that the nature and gravity of your offence, your culpability, the need for denunciation and deterrence and the effect of your offence upon the family of the deceased requires that you be sentenced to a period of imprisonment of six years.

36 Having regard to your relative youth and prospects of rehabilitation but bearing in mind the need for specific and general deterrence and the need not to undermine the effect of the sentence by specifying too short a period in which you would be eligible for parole[17], I consider that you should serve not less than three years and six months of those six years of imprisonment.

37 In the result, I sentence you to six years imprisonment. I fix a period of three years and six months as the period you must serve before becoming eligible for parole. I declare that the period to be reckoned as already served under the sentence is 513 days inclusive of today's date and I direct that there be noted in the Court's records the fact that the declaration has been made and its details.

[1] DPP v SJK [2002] VSCA 131 at [64]; R v Shahabi [2003] VSCA 108 at [11]

[2] Director of Public Prosecutions v DJK [2003] VSCA 109 at [17-18] per Vincent JA and at [30-31] per Eames JA; DPP v Scott [2003] VSCA 25 at [6-7], per Phillips CJ

[3] R v Blacklidge, Unreported, NSWCCA, 12 December 1995; BC 9501665 at 4, per Gleeson CJ

[4] R v Moore [2002] VSCA 33 at [16]

[5] R v Sherpa [2001] VSCA 145; R v PP [2003] VSCA 100; cf Rv Mireille Talij [2003] VSCA 87

[6] compare R v Hill [1996] VicRp 81; [1996] 2 VR 496 at 501

[7] cf Moore v R [2002] VSCA 33 at [16] per O'Bryan AJA

[8] R v Storey [1998] 1 VR 359 at 366-371; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [14]

[9] The deceased had a blood alcohol content of 0.12

[13] See also R v Hill [1996] VicRp 81; [1996] 2 VR 496 at 501

[17] The factors relevant to the setting of a minimum sentence are essayed in R v VZ [1998] VSCA 32 at [15]

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