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2 You and Ben Francis had known each other virtually all your lives. You attended primary school together and, apart from a period when Ben's father's employment took him elsewhere, you lived in close proximity to each other. You both attended Berwick Secondary College and you both subsequently attended Dandenong TAFE to pursue training as motor mechanics. Many witnesses whose statements appear on the brief of evidence in this case described the two of you as "inseparable" or as "the best of friends". You enjoyed a social life together which included a large circle of friends.

3 On Friday 3 September 2004 you telephoned your friend Ben and invited him to your place to play cards and to drink. Initially he refused your invitation. He had spent the two previous nights at your place as you were both attending the TAFE. On those nights you had gone to bed late after drinking and studying for an exam. Ben told you that he felt too tired. However, you persisted in your invitation and, after some further resistance, he agreed to come to your place.

4 You went to Ben's house and picked him up. On the way back to your place you bought a bottle of whisky each at a local liquor store. The whisky you bought was Canadian Club. Canadian Club whisky is 37% alcohol. Ben purchased a bottle of McCallum scotch whisky which is 40% alcohol. You also bought Coke and soda water.

5 Upon arrival at your house the two of you went to your bedroom, watched television and talked. At about 10.30 pm your mother went to bed. You and Ben began playing cards. You engaged in this pursuit over the next two hours or so and as you did so you drank whisky. Unsurprisingly you both became intoxicated.

6 At about 12.30 am Ben told you that he was going to bed because he was intoxicated and tired. He went to your younger brother's bedroom, where he often slept, shut the door and turned off the light. However, you followed him and asked him to get up so you could continue playing cards and drinking. He did not want to do this so he told you that he was going to walk home.

7 After Ben left your house you followed him, trying to convince him to return. At one point you grabbed his jacket to prevent him from walking away. You later told the police that at that point Ben spun around and said "piss off". He gave you a shove and continued to walk away. Again you approached him from behind and tapped him on the shoulder. According to your account to the police, Ben swung around quickly such that you thought he was going to give you a "slight punch". You reacted by punching Ben in the face on the left hand side. This punch proved to be fatal.

8 As a result of the punch Ben fell, landing heavily on the bitumen road and striking the back of his head. This impact fractured his skull. It was this event, caused by your punch, which caused Ben Francis' death. It was then about 1.00 am on 4 September.

9 At the time you punched Ben Francis you and he were both extremely drunk. You had both been drinking whisky for some hours. Analysis of a blood sample taken from him at 2.20 am, after he had been admitted to hospital, showed a blood/alcohol concentration of 0.14 gram/100 ml. There can be little doubt that your blood/alcohol concentration, had it been measured, would have been at least as high.

10 Perhaps because of your intoxicated state, after Ben fell to the roadway at first you did not realise what had occurred. When you did appreciate the seriousness of the situation, you attempted to seek help. This resulted in the attendance of an ambulance and police but only after some confusion as to where you both were was allayed.

11 After treatment at the scene Ben Francis was taken by ambulance to the Dandenong Hospital and subsequently to the Monash Hospital at Clayton where he died at 6.40 pm that evening.

12 The Crown accepts your plea of guilty to manslaughter on the basis that you killed Ben Francis by punching him once in the face, which punch caused him to fall to the ground thus fracturing his skull. Your plea constitutes an admission that you committed an illegal act, namely an assault and that at the time you did so a reasonable person in your position would have realised that what you did carried an appreciable risk of serious injury.

13 After Ben Francis was taken to the Dandenong Hospital you were arrested by police and taken to Narre Warren police station where you were subsequently interviewed. It is accepted by the Crown that in the course of that interview you were truthful to the police and described the events in which Ben Francis was injured as accurately as you could. Again, it is not unlikely that your capacity to do this and your memory of the details of the event were affected by the amount of alcohol you had drunk.

14 The effect of Ben Francis' death had a devastating effect on his parents, particularly on his mother. He was an only child and was clearly much loved. He had a promising future ahead of him. Whilst it would be trite to detail the effects on his parents and those who loved him of Ben Francis' death, it is appropriate to observe that their grief will be with them for the rest of their lives.

15 Thirteen victim impact statements were filed in this case by Ben Francis' parents, relatives and friends. The law permits victim impact statements to be filed on a sentencing hearing for a very specific purpose. That purpose is to inform the Court of the effect of a crime on the victims of that crime and of any injury, loss or damage which a victim has suffered as a direct result of the offence.[1]

16 It is not unusual for the victims of crime - perhaps particularly in homicide cases - to include inadmissible and irrelevant material in their victim impact statements. Generally, courts deal with this by confining their attention to those parts of a victim impact statement which are relevant and admissible and so comply with the law. However, in this case the victim impact statement filed by Ben Francis' mother was such that the Court could not follow that course. Mrs Francis' victim impact statement was of some 83 pages and, whilst it attested eloquently to the extreme grief and pain she has suffered and is suffering as a result of her son's death, it also contained much material which was irrelevant and inadmissible in the sentencing process. If allowed to go unremarked upon, this material might lead a person viewing the matter hereafter to be concerned as to whether there might have been a failure of process in this case. I am satisfied there was not.

17 Mrs Francis' victim impact statement included a long exposition of an alternative prosecution case to that presented against you by the Crown. That case included reference to professional opinions obtained by her upon which she sought to impugn the Crown case against you and substitute for it a case of murder.

18 The police investigation of Ben Francis' death appears to have been thorough, competent and professionally carried out. The brief of evidence before this Court attests to that. In particular, the investigation undertaken by the Victorian Institute of Forensic Medicine and its staff was of its usual high standard. There is no evidence to support any charge against you more serious than that to which you have pleaded guilty. In particular, no evidence emerged from the investigation which would have justified a charge of murder.

19 Because the Court considered it important that Mrs Francis' voice be heard in the sentencing process in your case, her victim impact statement was initially rejected as inadmissible and leave was granted to her to submit another victim impact statement which contained appropriate material. However the prosecutor subsequently informed the Court that Mrs Francis was unable to undertake the task of providing another victim impact statement. The Court then ruled that the original victim impact statement should remain on the court file but that only those parts of it which complied with the Sentencing Act 1991 should be regarded as being before the Court.

20 It is not the function of a victim impact statement to advocate for any particular sentence to be imposed in respect of an offender. It is the function of the prosecution to present a case in accordance with the evidence gathered by the police investigators and then to ensure that the sentencing court is aware of any aggravating factor which might have an impact upon the determination of the proper sentence to be imposed. The prosecution has carried out these functions in this case appropriately.

21 Some of the other victim impact statements before the Court appear to adopt some of the conclusions expressed by Mrs Francis. Insofar as they do so those statements are also before the Court to the extent that they contain relevant and admissible material.

22 You were born on 20 December 1985. You have one brother. You parents separated when you were 15 and you have lived with your mother since. You mother suffers from a rare neurological disorder which confines her to a wheelchair and renders her largely incapable of looking after herself. There is material before the Court from your mother's medical practitioners to the effect that you play a large part in providing your mother's daily care. This you have done for a very long time.

23 You were educated to Year 12 at Berwick Secondary College and since then have undertaken an apprenticeship with a local Toyota dealership as a motor mechanic. You attend Dandenong TAFE for the trade school component of that apprenticeship which you should complete later this year. Your employer regards you as an excellent employee.

24 You have been assessed by Mr Ian A. Joblin, a forensic psychologist and his report of 18 July 2006 is before the court. It is largely unremarkable. Mr Joblin found no evidence of psychological disturbance, mental illness or the like. He assessed you as having a very positive and strong attitude of responsibility towards your mother and, most importantly, that you regarded the matter for which you are presently before the Court as being very serious indeed.

25 The most significant aspect of Mr Joblin's report is his conclusion that he has no doubt whatsoever that you are suffering great distress as a result of what you did. He considered that you were contrite and extremely remorseful. He also offered the opinion that the guilt that you are suffering has led you, to some degree, to become socially isolated and withdrawn.

26 A number of witnesses gave evidence before the Court. They all spoke positively of you as did those who provided written references. However, one of those witnesses described the event which lead to Ben Francis' death as an "accident". In as much as it was an unintended consequence of the act which you performed it might be appropriately described as an accident. But in as much as it was the product of aggression fuelled by a vastly excessive amount of alcohol the term "accident" seems completely inappropriate.

27 That alcohol and violence are often companions is well known. What is perhaps less well known and certainly less appreciated is that the drinking of spirits by young men of your age is a particularly dangerous way to become intoxicated. Whilst all intoxication is fraught with the risk of injury either to oneself or to others, intoxication by the drinking of spirits has particular risks. The whisky which you were drinking before you killed your best friend was about eight times stronger than full strength beer. Despite what the manufacturers of such drinks might say in their advertisements, the drinking of spirits by 18 year olds, whether mixed with fizzy additives or not, should not form part of appropriate recreational activities for people of either sex - if for quite different reasons.

28 The maximum penalty for manslaughter is 20 years imprisonment. However, it is well accepted that the range of sentences imposed for this offence is probably the widest of any offence in the criminal calendar. This is because the circumstances in which involuntary homicide occurs can vary so greatly. This is why the law requires the court to fix a sentence having regard to all of the particular circumstances of the case under consideration. The Court is required to take into account the necessity to punish an offender for the offence which has been committed, to deter the offender and others from committing like offences, to express society's denunciation of the offence and, most importantly in the case of young offenders, to impose a sentence most conducive to the rehabilitation of that offender as a useful member of society.

29 Your counsel has described this case as exceptional. So it is. It is, fortunately, rare in our society for events of this nature to occur. You must be sentenced for this exceptional case having regard to the particular circumstances of your offending viewed in the context in which it occurred.

30 The Crown has properly conceded that, in this case, a sentence capable of suspension is within the range of sentencing options open. This concession does not, of course, bind this court to impose any particular sentence. But it necessarily implies that the Crown regards a custodial sentence of three years imprisonment as being within the range of available sentences in this case.

31 Unless there were very significant mitigating factors present in a manslaughter case a sentence of three years imprisonment would normally be regarded as very lenient, perhaps too lenient. However, I am constrained to agree with your counsel that this case is exceptional and that justice can be served by the imposition of a gaol sentence which is capable of being suspended.

32 The law requires a court to impose an immediate custodial sentence only if no other sentencing option can properly fulfil the objects for which the sentence is to be imposed. This sentencing principle applies with particular force to young offenders with no prior criminal history and the probability of effective rehabilitation. You fall into this category of offender. The evidence is very strong that you will not offend again.

33 I propose to sentence you to three years imprisonment and to order further that you serve a minimum of two years before being eligible for parole. That sentence will be suspended for a period of three years. However, before making this sentencing order I must ensure that you understand that the imposition of a suspended sentence carries with it the virtual certainty that you will have to serve that sentence in prison if you commit a criminal offence within the period of suspension. It is only in exceptional circumstances that a court could relieve you from serving the whole of that sentence, subject to its minimum term, should you commit another offence within three years. Do you understand that?

34 The Court being satisfied that Dan Leatham understands the responsibilities inherent in a suspended sentence and understands the consequences of a breach of the law within the period during which that sentence is suspended, there will be imposed a sentence of three years imprisonment with a non-parole period of two years and a further order that the whole of that sentence be suspended for three years. There is no declaration as to pre-sentence detention.

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