R v Lucas [2021] VSC 81

1 Just before midnight on 24 March 1944, British tail-gunner Flight Sergeant Nicholas Alkemade jumped from a spiralling Lancaster, on its return from a mission to Berlin, at an altitude of 5,500 metres. He had no parachute. A Junkers' guns had turned the bomber into a fireball and destroyed the last parachute on board. His uniform ablaze, the twenty-one-year-old rejected death by incineration. He chose instead to backflip out of his turret into the night sky and contemplate his last moments alive while gazing back up at the stars. As he hurtled towards the earth at over 200 kph, knowing that death was near, his ship exploded into smithereens.

2 Three hours later, the young airman opened his eyes. He was lying face-up - still looking at the stars - on a bed of snow on the floor of a Ruhr pine forest. It was not a dream. He was alive. Incredibly, the flexible pine branches and the powder snow had combined to break his fall. He had suffered cuts and bruises and a twisted knee, and his burns were serious, but he was otherwise unhurt.

3 After dusting himself off, his first act of the rest of his life - perhaps a tad ironically - was to light up a smoke. He went on to survive interrogation by an incredulous Gestapo and then over a year as a prisoner of war. After a couple of further near-misses in civilian life, the extremely fortunate Mr Alkemade managed to live for another 42 years. He died of natural causes in England in 1987.

4 Seventy-five years later, on the other side of the world, David Blake was not so lucky. Sadly, his experience proves that life can be as fragile as it can be robust. Standing 196 centimetres tall and weighing 171 kilograms (or six-foot-five and 27 stone in the old), it seemed nigh on impossible that such a man mountain could be harmed, let alone felled and killed, as a result of a couple of punches from a quick-tempered drunken lout suffering delusions of grandeur and of about two-thirds his weight and a good ten centimetres shorter. Surely, a man of Mr Blake's proportions, and of such a friendly disposition that his nickname was "Tender", would not even be attacked in this way in the first place.

5 Yet that is precisely what happened when Mr Blake came across Shane Lucas at the Farmers Arms Hotel in Creswick in the early hours of Sunday 24 November 2019. The two men were part of a group of four who were chatting away after last drinks had been called. All appeared to have had plenty. Mr Blake, especially, was so drunk as to be swaying as he was telling a story. But all were happy.

6 Suddenly, however, as a result of something Mr Blake said about an incident that had occurred long ago in the street in front of the hotel, Mr Lucas's mood turned nasty. He responded, angrily, with a remark about his "mate" and then threw two right-fisted punches to Mr Blake's head. Mr Blake was looking directly at Mr Lucas as the first punch came, which clipped his right jaw and appeared to daze him. The second punch followed quickly, connecting around the chin and/or the mouth. Mr Blake was rendered unconscious immediately. His legs buckled and he fell backwards, hitting his head on the concrete path, where he remained motionless.

7 From first to last, Mr Blake was passive: he neither threw, nor appeared to try to throw, any punches in response. Nor did he raise his hands in self-defence. If he saw the punches coming - which I think is reasonably possible in relation to the first, but not the second - he was just too slow to react.

8 Despite the desperate efforts of some hotel staff and patrons, and then four paramedics, Mr Blake could not be revived. Tragically, he died where he fell. He was only 39. Inevitably, his loved ones are in disbelief and their grief is profound.

9 In the immediate aftermath of the assault, the entirety of which was caught on the hotel's CCTV cameras, apart from the distressing nature of the incident and its dreadful result, two things struck me. First, initially, no one present appeared to realise just how gravely Mr Blake had been harmed. While he was ultimately attended to, there was a lull, as if all were expecting him to get up and dust himself off. It was not until twenty seconds after Mr Blake collapsed that anyone took his pulse and over three minutes before CPR was commenced. I hasten to add that this is not in any way a criticism of those who responded. Doubtless, there was an element of shock at what had just happened, as well as a justified concern about the menacing Mr Lucas's lingering presence. Nevertheless, it is behaviour consistent with a shared belief that Mr Blake was, or would be, all right.

10 Secondly, and, in a sense, consistently with this belief, Mr Lucas kept bouncing around in an orthodox pose with his fists held up as if he were Muhammad Ali ready to continue the fight. In truth, he was carrying on like a pork chop, and was more Fester Fumble[1] than the world's greatest boxer. He shaped up to Jarrod Adams, who had stepped towards him with his arms out wide and admonished him for being a coward. But, then, as if to confirm the accuracy of that barb, he fled the scene, cravenly. As soon as that happened, it was Mr Adams who was the first to step in and attempt to take Mr Blake's pulse.

11 Later that morning, however, Mr Lucas eventually did the right thing and handed himself in to police in Ballarat. He was arrested and charged with the manslaughter of Mr Blake. He has remained in custody ever since.

12 On 3 September last year, Mr Lucas pleaded guilty in this Court to manslaughter. On 10 December, I heard the prosecution opening and the victim impact statements and his plea in mitigation was commenced. The matter was then adjourned to 11 January, so that Mr Lucas's legal advisers might obtain a neuropsychological report in the interim. On that day, I heard the balance of the plea in mitigation, as well as submissions on some questions of law. Now, I must sentence Mr Lucas.[2]

13 A preliminary legal issue concerns the application by the Director of Public Prosecutions to have Mr Lucas's offence subject to the so-called coward's punch sentencing regime. If applicable, this regime compels the imposition of a non-parole period of at least ten years' duration.[3] Mr Lucas opposes that application. For reasons I shall give later, I am not satisfied beyond reasonable doubt that all of the pre-conditions in the applicable provisions have been established. Accordingly, those provisions do not apply to Mr Lucas's case and I must impose sentence under the more conventional regime instead.

14 That said, the offence is still serious. A man has been cut down in his prime as a result of unlawful and senseless violence. The CCTV footage is sickening. It is like watching a nasty hyena take down a noble wildebeest. While there are mitigating factors - including a plea of guilty, some remorse and solid prospects of rehabilitation - Mr Lucas must still receive a substantial sentence of imprisonment.

15 One of the more unusual features of this case concerns the cause of Mr Blake's death. Often, those who are assaulted and then fall (unconscious or not), strike their head and die, do so because of catastrophic brain injury (and sometimes a fractured skull) resulting from the heavy impact of the head with a hard surface. In Mr Blake's case, however, the autopsy revealed that, while he had a cut to the back of his head, he had only marginal brain swelling and neither a skull fracture nor a traumatic brain injury. He also suffered only relatively minor facial harm. In accordance with his appearance on the night, the post-mortem alcohol readings in his system were very high. He also had an enlarged heart and suffered from class III obesity. As I shall explain in more detail later, the pathologist's opinion is that the mechanism of death was likely to be multifactorial, with contributions from commotio medullaris (which is a rarish form of concussive brain injury), intoxication and the pre-existing enlarged heart. In such circumstances, sudden death can result even where there is only mild to moderately severe blunt force to the head.

16 Thus, it might not have taken much of an assault to kill Mr Blake. This is one of the reasons why I say that, in stark (albeit not a precisely obverse) contrast with the falling tail-gunner, Mr Blake seems to have been as unlucky as he was big and gentle. This reality may also be reflected in the lull before the administration of first aid, as well as in Mr Lucas's idiotic post-assault bouncing about.

17 That said, and while necessarily we see a very skewed sample of violence and its dire consequences in this Court, experience nevertheless tells that death by a comparatively minor assault is not as rare as may be thought. A punch or two to the head can kill, and sometimes does. Indeed, part of the purpose and effect of one aspect of the coward's punch provisions is that a punch or strike that by itself causes an injury to the head or neck is taken to be a dangerous act for the purposes of the law of manslaughter by an unlawful and dangerous act. There is an understanding that it is not like the movies or computer games, where those assaulted in these ways always bounce back without harm. Instead, lives are in fact taken in moments of such mindlessness. Loved ones are left grief-stricken. And the perpetrator's life is in ruins too, for he (it is nearly always a male) must live with what he has done and suffer any legal consequences that come his way.

18 Before announcing sentence, I shall (a) summarise in more detail the background to, and events surrounding, the death of Mr Blake; (b) outline the victim impact statements; (c) explain my findings under the coward's punch provisions; and (d) discuss the nature and gravity of the offence, the mitigating factors, the applicable sentencing principles and purposes and some comparable cases.

Summary of background to, and events surrounding, offence

20 He was born on 8 October 1980, the youngest of six children, to Nancy and David Blake (senior).

21 He grew up on the family's farming property in Cabbage Tree (which is about five kilometres from Creswick). The farm is only fourteen acres, but, throughout their childhood, Mr Blake and his siblings delighted in having full roam over 20,000 acres of bushland that abutted the property.

22 Mr Blake's mother's family came to the area in the 1850s in search of gold, whereas his father's father, who was a builder, settled there nearly a century later, in the 1940s. Many in his extended family live nearby.

23 Mr Blake attended North Creswick Primary School for his primary education. He then went to Wendouree Secondary College and ultimately left school, at the age of 15, at the end of Year 10.

24 He began working with his eldest brother Bradley Blake, a builder sub-contracting to other builders around Ballarat and Creswick. He performed general labouring work, before gaining an apprenticeship in a plastering business. He had a passion for his work, for which he was renowned in the area.

25 He played football at Creswick throughout the years in the juniors, reserves and seniors.

26 At the age of 20, Mr Blake bought his first house, in Creswick, and lived there until his death.

27 He was a dedicated family man, spending his time with his siblings, nieces and nephews. He was much loved and respected around the community. As I indicated earlier, he was affectionately known as Tender because of his gentle nature.

28 Mr Lucas was born on 21 September 1978. He was 41 at the time of the offence and is now 42.

29 At that time, he was residing between addresses in Creswick and Mitchell Park (which is a suburb of Ballarat). Coincidentally, he too was employed as plasterer.

30 I shall say more about his personal circumstances later.

32 On Saturday 23 November 2019, at about 2:18 p.m., Mr Lucas was matched, via the dating application Tinder, with Natalie Brown. The two exchanged a series of messages and arranged to meet at the Farmers Arms Hotel at 8:30 p.m. that evening.

33 At about 7:47 p.m., Mr Blake arrived at the same hotel. As a regular, he interacted easily with other local patrons and hotel staff.

34 At 8:32 p.m., Mr Lucas arrived at the hotel, ordered a drink, and sat on a couch in the dining area. Ms Brown arrived at 8:55 p.m. They met at the bar and moved to the dining area.

35 At 9:30 p.m., Mr Lucas and Ms Brown walked past Mr Blake, who was sitting at the bar. Mr Lucas and Mr Blake shook hands and greeted each other in a friendly manner before the couple went towards the beer garden.

36 While they were in the beer garden, Ms Brown told Mr Lucas that she recognised Mr Blake as she had previously been matched with him on Tinder. She said that they had not met up, however, because he wanted to have children and settle down, whereas she was "not interested in that".

37 During the evening, Mr Lucas and Mr Blake were each seen interacting with numerous patrons, dancing and being jovial and friendly.

38 At some stage later in the night, Mr Blake told Ms Brown, "You are way too drunk to drive home. I'm gonna go home soon. I'll be a gentleman - I'll take you home to my place. No funny business."

39 I should say at once that there is not the slightest suggestion that Mr Lucas was aware of this exchange or that his subsequent anger and violence had anything to do with these or related events.

40 At 1:37 a.m., Mr Lucas exited the front door of the hotel. A short time later, he was joined by Julie Bond and they had a conversation.

41 As last drinks were called, Mr Blake asked Ms Brown if she was ready to go. While Ms Brown finished her wine, Mr Blake left the hotel through the front door. This was at about 1:41 a.m. Shortly after that, Ms Bond returned inside to her friends Maria Raffoul and Abby Wallace. This left Mr Lucas and Mr Blake together.

42 I pause to note the following. In the Director's Plea Opening, it is correctly observed that both Mr Blake and Mr Lucas "consumed an unknown quantity of alcohol". As I indicated earlier, however, it is obvious from the CCTV footage that, by 1:45 a.m., Mr Blake was heavily intoxicated.[4] Further, while toxicologists often say that there are limitations in reasoning backwards from post mortem urine and vitreous humour samples, those readings, at 0.24 g/100 mL and 0.27 g/100 mL, were very high, which is consistent with his appearance.

43 Mr Lucas's behaviour suggests that he too was quite intoxicated. Despite the time he had to throw the first punch and despite Mr Blake's lack of evasive action, he still only just clipped the right side of his victim's jaw. In addition, while the second head-punch was more accurate, and doubtless he meant to connect with the head, its effectiveness appeared to be a bit of a fluke, aided in part by the way in which Mr Blake fell into the punch, as Mr Lucas's ungainly pseudo-boxer movements suggest to me a person who was drunk. Finally, he had been there since 8:32 p.m. While observations varied, he was noticed by others to be drinking alcohol during that period,[5] which, likewise, is consistent with his appearance.

44 Back to the summary of events. At about 1:44 a.m., Jarrod Adams and Simon Gallagher exited the hotel through the front door. They lit up cigarettes and joined Mr Lucas and Mr Blake on the path. All four men seemed to be chatting away happily. While each moved around a bit from time to time, they stood in roughly a diamond formation. As they appear on the CCTV footage:

(a) Mr Blake (who was the tallest and was wearing dark grey clothes) had his back to the street and was mostly facing the hotel;

(b) Mr Gallagher (who was the shortest and was wearing pale shorts and a dark long-sleeved top) was opposite him, with his back to the hotel wall;

(c) Mr Adams (who appeared to be the second-tallest and was wearing a long-sleeved Miller jacket and a pale cap) was to Mr Blake's left and Mr Gallagher's right, more or less opposite Mr Lucas; and

(d) Mr Lucas (who was third in the height stakes, at perhaps about 186 centimetres, and was wearing a sky-blue t-shirt and sporting a shaved head) was to Mr Blake's right and Mr Gallagher's left, in front of a window.

45 As indicated earlier, Mr Blake, in particular, was unsteady on his feet, swaying every now and then. He motioned and looked towards the street a couple of times while conversing with the others. Mr Adams thought that Mr Blake and Mr Lucas were talking about an incident from years before when a man was shot by police out the front of the hotel. He thought Mr Blake said that there was still a line on the ground where the man's body had been. At that point, Mr Lucas's mood changed dramatically. Mr Adams thought that Mr Lucas then said something like "he was me mate". Mr Gallagher heard Mr Lucas say something similar, such as, "Don't talk about my mate like that" or "Don't bad mouth my mate like that."

46 At this point, I should pause to note that history records that, on 5 December 1992, the notorious criminal Edward "Jockey" Smith, unwisely, drew a gun on an armed policeman, Constable Ian Harris, out the front of the same hotel. After a stand-off of sorts, which also involved a member of the public assisting Constable Harris, Mr Smith was shot and killed. Whether that was the incident to which Mr Blake referred, or to which he was believed to be referring, I cannot say. Neither Mr Lewis, who appeared for the Director, nor Mr Tovey, who appeared for Mr Lucas, had any instructions about it. It is therefore likely to remain a mystery.

47 In any event, while the CCTV has no sound, it seems to me that it can be readily inferred - and I do so infer - that the conversation and the drastic change in mood can be aligned with the depiction on the CCTV footage from both angles in the seconds before about 01:58:20 according to the time stamp. (I should also add that it is agreed between the parties that the time stamp is thirteen minutes fast - so that the correct time is about 01:45:20 at this point.)

48 It should also be noted that the CCTV can be slowed down to a frame-by-frame analysis, with time almost standing still. As anyone who follows televised sport closely knows, however, great care must be taken when employing such an approach, as it can distort as much as it can inform.

49 In any event, having watched the CCTV footage from both angles on numerous occasions, at the usual speed and slowed down to extremely slow motion, and at other speeds in between, and having regard to the other evidence in the case (including that of Mr Gallagher and Mr Adams), I am satisfied of the following events:

(a) First, after Mr Lucas angrily responded with the remark about his "mate", he drew his right arm back, kept his left fist up defensively, stepped towards Mr Blake and threw the first of two closed-fist punches to his head. Mr Blake was looking directly at Mr Lucas as the first punch came, which clipped his right jaw. The follow-through of Mr Lucas's punch caused his fist to travel well past Mr Blake's neck. The punch seemed to daze Mr Blake, although he did not appear to be knocked unconscious. Prior to and at the time the punch was received, Mr Blake had his right hand in his right pocket and his left arm bent at about 80 degrees and more or less tucked into his chest. He appeared to be holding something in his left hand (perhaps keys or a phone).

(b) Second, as Mr Lucas's right arm recoiled somewhat, he appears to have extended it again partly and made a slight pushing contact with Mr Blake's right collarbone region. Mr Blake's right leg took a step backwards and his left leg straightened, as if to balance himself. His head also went back a bit and slightly to his left. His body was tilted forwards a little as both of his legs straightened further, with his left leg almost hyper-extending. All the while, Mr Lucas kept his left arm in front of his chest, as if to protect himself from any return blow.

(c) Third, Mr Blake then moved his left leg back and leaned forwards more. By that stage, he had his head side-on to Mr Lucas, with his right arm still down by his side, although his hand may have been coming out of his pocket. Mr Lucas had his right (rear) foot planted, his left foot forwards, his left arm still raised defensively, and his right arm cocked and about to punch Mr Blake again with his right fist.

(d) Fourth, Mr Lucas's second punch to the head then connected with Mr Blake's chin and/or mouth. Mr Blake did not appear to be looking at Mr Lucas as this punch came. Physiologically, he may have been able to see the punch coming out of the corner of his eye, but I am satisfied that he did not see it. His right arm was still by his side, although his hand was clearly out of his pocket by now. As his chin and/or mouth were struck, Mr Blake's head twisted to the left and backwards; his back arched; his knees bent; and his legs collapsed. As he fell backwards, his buttocks appeared to touch the path first, but not hard; then his back straightened and unfurled itself against the path; his momentum pushed both of his arms out at right angles, but provided no cushioning; and, lastly, the back of his head struck the path. As his body settled in the supine position, his arms fell down by his side, but nearly parallel with his shoulders, and each was still bent at about 90 degrees. There were no voluntary movements of his body thereafter.

(e) Fifth, as Mr Blake was falling to the path, and even after he landed, Mr Lucas had recoiled his right arm and still had his left arm up defensively. He bounced around partly on the balls of his feet, all the while in an orthodox stance and with both fists raised, as if ready both to defend or jab with his left and strike with his right.

(f) Last, at no point, from the time of Mr Lucas's remark until the time Mr Blake fell to the path, did Mr Blake act, or react, aggressively. Nor did he appear to attempt to throw a punch or defend himself.

50 I turn now to the immediate aftermath of the assault. According to the time stamp (as adjusted), Mr Blake fell to the path at about 01:45:27.

51 As Mr Lucas was bouncing about like a fool, Mr Adams took a couple of steps towards him, admonished him for being a coward and held his arms out wide in a pacifying gesture, as if to say, "For goodness' sake, just stop; I'm not going to fight you."

52 At 01:45:33, Mr Lucas abandoned his aggressive pose briefly and bent down to collect his keys. They had fallen from the windowsill just after he placed them there only a moment before the first punch. Next, he first backed away, and then took a half-step forwards in what seemed to be a threat to others to stay back. He then retreated further but remonstrated as he did so. Ultimately, he turned and kept on walking away down the front path towards the north.

53 At about 01:45:47, with Mr Lucas by then some distance away, Mr Adams leaned down and attempted to take Mr Blake's pulse in his neck.

54 At 01:45:57, Mr Adams and hotel employees Max Ellery and Dale Christie turned Mr Blake onto his side and into the recovery position.

55 At 01:46:04, Mr Adams walked off in the direction that Mr Lucas had gone. Mr Lucas could be seen in the distance, still hovering about, and showing signs of an aggressive demeanour.

56 Around the same time, Mr Christie noticed blood coming from the back of Mr Blake's head, and asked Mr Ellery to get him something to staunch the bleeding. In the meantime, several other patrons also went to Mr Blake in an attempt to assist Mr Christie or were otherwise there ready and willing to help. At 01:46:54, Mr Ellery returned with a towel, as requested.

57 According to the time recorded on the transcript of the call (which may not align with the adjusted time on the CCTV), at 01:47:22, Alysha Leaver-Pearce got through to a triple-zero operator. She conveyed instructions from the operator to those who were attending to Mr Blake, which included placing him on his back and performing CPR.

58 At 01:48:41, Mr Blake was turned onto his back. Mr Christie, Mr Ellery and Ms Brown all engaged in or assisted with CPR under instruction from the triple-zero operator. This continued for a considerable time. At one point, the operator instructed the patrons to send someone across the road to the fire station to fetch a defibrillator.

59 At 01:57:23, Ms Bond also got through to a triple-zero operator. She said that they needed a defibrillator and that the ambulance had not come. The operator explained that those doing the CPR were on the phone to the ambulance as they were speaking. (This, I assume, was a reference to the other triple-zero operator.) The operator also said that the ambulance and police were on their way.

60 First Constable Joshua Brown and Constable Meg Farrell were the first police officers on the scene. They arrived at 2:02 a.m. Constable Farrell could see that Mr Blake was unconscious, that his face was very dark purple and that there was a small amount of blood on the path, which appeared to be coming from the back of Mr Blake's head.

61 Two paramedics arrived from Ballarat at 2:04 a.m. and a further two arrived from Sebastopol two minutes later. They had received calls to attend at 1:48 a.m. and 1:49 a.m. respectively. Initially, they directed that CPR cease so that they could make an assessment of Mr Blake's condition. He was breathing and had a pulse, but remained unconscious. Moments later, however, he had no pulse and his breathing was ineffective. CPR was recommenced immediately.

62 Despite the best efforts of those who treated Mr Blake, however, by 2:40 a.m., there were no signs of life. At that time, a decision was taken among the paramedics to cease resuscitation.[6] The time of death was formally recorded as 2:40 a.m.

63 While the paramedics were treating Mr Blake, other police arrived. Officers spoke to witnesses, took some witness statements, and viewed the CCTV footage.

64 They ascertained Mr Lucas's personal details and went to his address at 3:45 a.m., but were unable to raise anyone.

65 At 6:22 a.m., Mr Lucas handed himself in at Ballarat Police Station. He was arrested on suspicion of manslaughter.

66 At 8:15 a.m. (i.e. about six-and-a-half hours after the incident), Mr Lucas submitted to a preliminary breath test. His blood-alcohol reading was 0.000 g/100 mL.

67 Police also sought to interview Mr Lucas at 10:16 a.m., but that was not persisted with as Mr Lucas wished to speak to his solicitor first. At 11:14 a.m., police sought to interview Mr Lucas again. In the interim, they had tried to contact Mr Lucas's solicitor, but had been unsuccessful. Finally, after Mr Lucas had spoken to his solicitor, a short interview was conducted from 11:42 a.m. Mr Lucas consented to providing his fingerprints and a DNA swab but otherwise made no comment in response to questions put to him, as was his right.

68 Mr Lucas was charged with manslaughter. He has remained in custody ever since.

69 From 3:24 p.m. to 6:35 p.m. the same day, forensic pathologist Dr Gregory Young conducted an autopsy on Mr Blake at the Victorian Institute of Forensic Medicine in Southbank.[7]

70 In summary, Dr Young made the following findings:[8]

(a) Mr Blake was 196 centimetres tall and weighed 171 kilograms.

(b) He had a Y-shaped laceration on the left rear of his scalp (as well as bruising over a small area, predominantly on the left), but no skull fracture and no intracranial haemorrhage.

(c) There was marginal brain swelling with no evidence of traumatic brain injury.[9]

(d) There were elevated ethanol (alcohol) levels in his blood (0.24 g/100 mL) and vitreous humour (0.27 g/100 mL).

(e) He had cardiomegaly (i.e. an enlarged heart, weighing 656 grams) with biventricular hypertrophy (i.e. a thickening of the heart chambers) and moderate atherosclerosis of the left anterior descending and right coronary arteries (i.e. a build-up of fat in the arterial walls).

(f) According to the World Health Organization ("WHO") index, he had class III obesity (with a body mass index, "BMI", of 45 kg/m2).

(h) He had sustained anterolateral fractures of the right fifth and left second to fifth ribs (i.e. broken ribs).

(i) He also had small abrasions and bruises in the inner lips.

(j) A small area of pallor was observed over the front left cheek, which appeared to be more swollen than the right cheek.

(k) An anterior neck dissection showed small bruises over both heads of the right sternocleidomastoid muscle, and a slightly larger area of bruising over the right angle of the mandible (i.e. the jawbone). Elsewhere in his report, Dr Young said that "[s]ubcutaneous dissection of the lower face showed an area of bruising over the right mandible and parotid gland".

71 Dr Young considered that the rib fractures and the bruises and abrasions on the inner lips may have been the result of CPR and intubation respectively.[10] Plainly, the first of those opinions must be correct. Nothing Mr Lucas did could have broken Mr Blake's ribs. And, while his second head-punch may have connected with Mr Blake's mouth and thereby caused abrasions and/or bruises on the inner lips, given Dr Young's opinion, I cannot exclude the reasonable possibility that those things were caused by intubation.

72 Dr Young described the cause of death as "complications of blunt cranio-facial injury in the setting of alcohol intoxication, in a man with cardiomegaly and WHO class III obesity".[11]

73 He also viewed the CCTV footage of the incident. With that in mind, Dr Young went on to say these things relevant to the cause of death:[12]

[5] ... Given the lack of skull fracture or intracranial haemorrhage, the cause of death is informed significantly by the circumstances and CCTV footage. The mechanism of death was therefore likely to be multifactorial, with contributions from concussive brain injury (commotio medullaris), alcohol intoxication and a pre-existing enlarged heart.

[6] My observation from the CCTV footage was that the deceased appeared to be unsteady on his feet immediately after the first impact to his face, then he fell backwards immediately after the second impact to his face. The back of his head hit the ground, which would have resulted in the occipital scalp laceration. Therefore, there appeared to be a temporal relationship between the alleged assault, and death.

[7] Commotio medullaris is a term used to describe the sudden demise of an intoxicated person at the time or shortly after a mild to moderately severe blunt force head injury, usually resulting from an assault. The mechanism for cardiorespiratory arrest in these cases is thought to include cardiac arrhythmia and/or the effects of ethanol on cardiorespiratory function, failure of respiration (so-called post-concussive apnoea) and dysfunction of the autonomic nervous system.

[8] Cardiomegaly is enlargement of the heart, not in keeping with normal physiological change in an individual. The predicted normal heart weight in a man of 150 kg body weight is approximately 479 g, with a 95th percentile of 633 g. The predicted normal heart weight in a man of 195-196 cm height is approximately 365 g, with a 95th percentile of 516 g ... . Obesity is defined as having a [BMI] of 30 kg/m2 or greater. A further classification by the [WHO] divides this into class I obesity (from 30 to 35 kg/m2), class II obesity (from 35 to 40 kg/m2), and class III obesity (greater than 40 kg/m2).

[9] Notwithstanding the deceased's notable height, his heart is nevertheless enlarged, and may be associated with his obesity (so-called obesity cardiomyopathy). Increased heart mass may result in increased susceptibility to a cardiac arrhythmia (heart attack) in times of physiological stress (such as that associated with injury).

74 As I have intimated already, and as described by the pathologist, this is not the more commonly seen cause of death for a person who is punched, falls, strikes his head on a hard surface and dies. Instead, in addition to the assault to the head, there were complications arising from Mr Blake's enlarged heart, his obesity, and the level of his intoxication. That said, Mr Lucas must take his victim as he finds him. Causation is still made out, which his plea of guilty admits anyway. Further, as I understand the parties' joint position, there is no dispute that the two head-punches combined (in an undifferentiated fashion) to be a cause of Mr Blake's death.

Committal; plea of not guilty; examination of witnesses; then plea of guilty

75 On 25 June 2020, Mr Lucas accepted committal to this Court on a charge of manslaughter by way of a straight hand-up brief. He pleaded not guilty.

76 On 31 July 2020, the two eye-witnesses (Mr Gallagher and Mr Adams) were cross-examined at a brief hearing in this Court.[13]

77 On 3 September 2020, at a directions hearing before the Judicial Registrar, Mr Lucas pleaded guilty to manslaughter. A plea in mitigation was then set down for hearing.

Application under ss 9A and 9C of the Sentencing Act

78 I turn now to the Director's application to have Mr Lucas subject to the so-called coward's punch sentencing regime. There are several steps in the process.

79 Section 9C(2) of the Sentencing Act 1991 (Vic) ("the Sentencing Act") provides that, in sentencing an offender to whom the provision applies, the Court must impose a term of imprisonment and fix under s 11 a non-parole period of not less than ten years, unless the Court finds under s 10A that a special reason exists.

80 Section 9C(3), however, provides that s 9C(2) applies only if the Court is satisfied beyond reasonable doubt of the four criteria set out in the former sub-section.[14]

Manslaughter is (mostly) a common law offence, with notable qualifications

81 Before turning to whether those four criteria have been established, I must deal with some other preliminary matters.

82 At the outset, it is to be noted that manslaughter in this State is (mostly) a common law offence.[15] At the time of Mr Blake's death, the maximum penalty for the offence was 20 years' imprisonment.[16]

83 The form of manslaughter relied on by the Director is manslaughter by an unlawful and dangerous act. This means that, when he consciously, voluntarily and deliberately punched Mr Blake, while Mr Lucas had no intention to kill or cause really serious injury or recklessness thereto (for otherwise it would be murder), his plea of guilty accepts that his conduct was unlawful and dangerous and that it caused death. The punching was unlawful because it amounted to an assault. Usually, in order to be dangerous, the punching must be such that a reasonable person in Mr Lucas's position would have realised that, in punching Mr Blake as he did, he was exposing him to an appreciable risk of serious injury.[17]

Section 4A of the Crimes Act and dangerousness

84 In the present case, however, the Director relies on s 4A of the Crimes Act 1958 (Vic) ("the Crimes Act"), which has the effect of treating certain behaviour as if it were dangerous for the purposes of the law relating to manslaughter by an unlawful and dangerous act.

85 Further, it will be seen that, if Mr Blake's death was caused by a punch that, under s 4A(2), is taken to be dangerous, then the first of the four criteria in s 9C(3) of the Sentencing Act that must be established in order to bring the case within the coward's punch sentencing regime will have been met.

Manslaughter - single punch or strike taken to be dangerous act

(1) This section applies to a single punch or strike that -

(a) is delivered to any part of a person's head or neck; and

(b) by itself causes an injury to the head or neck.

(2) A single punch or strike is to be taken to be a dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act.

(3) For the purposes of subsection (2), it is irrelevant that the single punch or strike is one of a series of punches or strikes.

(4) A single punch or strike may be the cause of a person's death even if the injury from which the person dies is not the injury that the punch or strike itself caused to the person's head or neck but another injury resulting from an impact to the person's head or neck, or to another part of the person's body, caused by the punch or strike.

Example

If a person punches another person to the head, and that other person falls, hits their head on the road, and dies from the injury resulting from their head hitting the road, the punch may be the cause of their death.

(5) Nothing in this section limits the circumstances in which a punch or strike may be an unlawful and dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act.

(6) In this section -

injury has the same meaning as in Subdivision (4) [which includes s 15];

strike means a strike delivered with any part of the body.[18]

87 In s 15 of the Crimes Act:

• "injury" is defined to mean "physical injury [or] harm to mental health ... whether temporary or permanent";

• "physical injury" is defined to include "unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function"; and

• "harm to mental health" is defined to include "psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm".

88 On the evidence before me, unless otherwise indicated, I am satisfied, beyond reasonable doubt, of the following things concerning the first head-punch thrown by Mr Lucas:

(a) First, Mr Lucas's right fist clipped Mr Blake's right jaw, which is part of his head.

(b) Second, the same punch caused "[small] bruises over both heads of the right sternocleidomastoid muscle, and [an] area of bruising over the right angle of the mandible" and "an area of bruising over the right mandible and parotid gland".

(c) Finally, while I cannot say whether that bruising amounted to "an impairment of bodily function", I can - and do - infer that it would have caused "substantial pain", such that it amounted to "physical injury", albeit of only a temporary nature, but nevertheless still an "injury" within the meaning of ss 4A(1)(b) and 15 of the Crimes Act.

89 As for the second head-punch thrown by Mr Lucas, again, unless otherwise indicated, I am satisfied, beyond reasonable doubt, of the following things:

(a) First, Mr Lucas's right fist struck Mr Blake's chin and/or mouth region, which is part of his head.

(b) Second, given Dr Young's view that small abrasions and bruises on Mr Blake's inner lips may have been caused by intubation, I do not think it would be safe to regard those things as being caused by the second punch.

(c) Third, while it may be said that that punch caused Mr Blake to fall back and hit his head and thereby cause the laceration to the back of his head, in my view, that laceration (and any pain that may have come with it[19]) cannot fall within s 4A(1)(b), because the punch did not "by itself cause an injury to the head".

(d) Fourth, while there may have been pain resulting from the fist contacting Mr Blake's jaw and/or mouth, I am not satisfied that he would have experienced any such pain, as it is plain that he was knocked unconscious immediately as a result of that second punch.

(e) Finally, however, the fact that he was rendered unconscious by the punch means that it caused "physical injury", and therefore "injury" within the meaning of ss 4A(1)(b) and 15 of the Crimes Act.

90 In those circumstances, it follows that I am satisfied, beyond reasonable doubt, and in accordance with s 4A(2), that each of those two punches is to be taken to be a dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act.

Section 9C(3) of the Sentencing Act

91 The next step in the process is to determine whether the four criteria in s 9C(3) of the Sentencing Act are established. In order to deal with these questions, it is necessary to set out s 9C in full:

Custodial sentence must be imposed for manslaughter by single punch or strike

(1) This section applies to the sentencing of an offender (whether on appeal or otherwise) for an offence of manslaughter if -

(a) the prosecution served and filed a notice under section 9A in relation to the offence; and

(b) the notice specifies, in accordance with section 9A(3), that it relates to this section; and

(c) the notice has not been revoked under section 9A(8).

(2) In sentencing the offender, the court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than 10 years unless the court finds under section 10A that a special reason exists.

Note

Section 11(3) requires that a non-parole must be at least 6 months less than the term of the sentence

(3) Subsection (2) applies to the court in sentencing the offender only if the court is satisfied beyond reasonable doubt that -

(a) the victim's death was caused by a punch or strike that, under section 4A(2) of the Crimes Act 1958, is taken to be a dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act; and

(b) the offender intended that the punch or strike be delivered to the victim's head or neck; and

(c) the victim was not expecting to be punched or struck by the offender; and

(d) the offender knew that the victim was not expecting, or was probably not expecting, to be punched or struck by the offender.

(4) The court may be satisfied of the matters specified in subsection (3)(c) and (d) even if the victim was involved in a confrontation with the offender or any other person before the punch or strike was delivered.

(5) The fact that the offender warned the victim of the punch or strike immediately before delivering it does not mean that the victim was expecting to be punched or struck by the offender.

Example

The offender might only warn the victim of the punch or strike so close to the time of the delivery of the punch or strike that the victim is not expecting to be punched or struck by the offender.

(6) Subsection (2) does not apply to -

(a) a person who is involved in the commission of the offence within the meaning of section 323(1)(a) or (b) of the Crimes Act 1958; or

(b) a person who is under the age of 18 years at the time of the commission of the offence.

(7) In this section -

strike has the meaning given by section 4A of the Crimes Act 1958.

Criterion 1: Whether death caused by punch taken to be dangerous (s 9C(3)(a))

92 As will be obvious by now, the first criterion in s 9C(3) is established. This is because, as already indicated, there is no dispute, and I am satisfied beyond reasonable doubt, that Mr Blake's death was caused by a combination of two punches, each of which, under s 4A(2) of the Crimes Act, is taken to be a dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act. In those circumstances, there is no need to resort to s 4A(3).[20]

Criterion 2: Whether intent to deliver punch to head (s 9C(3)(b))

93 The second criterion concerns whether, pursuant to s 9C(3)(b), "[Mr Lucas] intended that the punch ... be delivered to [Mr Blake's] head". Again, there was no dispute about this issue. The CCTV footage makes it clear, and I am satisfied beyond reasonable doubt, that Mr Lucas intended to deliver each of the two punches to Mr Blake's facial region, and therefore to his head. Nor, again, is there any need to resort to s 4A(3).[21]

Point (or points) at which states of mind in third and fourth criteria must be established

94 As we have seen, the third criterion concerns whether, pursuant to s 9C(3)(c), Mr Blake "was not expecting to be punched or struck by [Mr Lucas]"; and the fourth criterion concerns whether, pursuant to s 9C(3)(d), Mr Lucas "knew that [Mr Blake] was not expecting, or was probably not expecting, to be punched or struck by [Mr Lucas]".

95 Mr Lewis and Mr Tovey agreed that, in the circumstances of this case, the relevant time at which to assess the states of mind set out in these two paragraphs is at the point that the first blow was delivered. The rationale for this submission, as explained by Mr Tovey, was that, since the criteria in s 9C(3) are in the form of conduct, consequences, circumstances and states of mind in the same way that the elements (or actus reus and mens rea) of an offence might be structured, and since the two blows are relied on, in combination, as the cause of death, the requirement of complete contemporaneity of such elements as is required for an offence should apply to all four criteria in s 9C(3).[22]

96 It is arguable that the logical extension of this submission is that, if, in a case like the present, the four criteria were established in respect of the first blow, but one or more were lacking in respect of the second, then s 9C(3) would not be satisfied and, therefore, s 9C(2) could not apply.

97 Mr Lewis resisted that argument. He submitted that, in so far as it is possible to do so, the terms of s 4A(3) are to be imported into all of the four criteria in s 9C(3), so that proof that one punch (or strike) that meets the test in s 4A(2) is sufficient in respect of each criterion.

98 Equally, however, Mr Lewis conceded that, if the Director failed to establish, say, either or both of the requirements in paragraphs (c) and (d) in respect of the first punch, s 9C(2) could not be rendered applicable by proving the equivalent in respect of the second punch. He reasoned that, once the first blow has landed, none of the tests in s 9C(3) can really have any meaning because the dynamic of the physical attack thereafter has altered, as have the combatants' thoughts.

99 In so far as the majority of the Court of Appeal (Priest and Kyrou JJA) held in Esmaili v The Queen that the words "punched" and "struck" in paragraph (c) (and, implicitly, paragraph (d)) of s 9C(3) must be influenced by the words "punch or strike" in paragraphs (a) and (b),[23] so too it might be said that those words in all four paragraphs must be construed by reference to s 4A(2), which in turn incorporates the terms of s 4A(3). If that is correct, it would tend to support Mr Lewis's first submission, but it would also tend to undermine his concession concerning reliance on proof of the criteria in respect of the second blow. That said, those remarks of Priest and Kyrou JJA were not directed at the particular points at issue here, and could not be anyway, as Mr Esmaili's case involved only a single (albeit sneaky and devastating) punch that caused death.

100 In the end, I prefer the view that, where, as here, two punches are relied on in combination (in an undifferentiated fashion) as the (or a) cause of death, all four criteria in s 9C(3) must be established in respect of each such punch before s 9C(2) can apply. In my view, that approach is consistent with the words used in, and the legislative intent behind, the provisions, and with the fundamental principle of contemporaneity. As for legislative intent, nothing in either the explanatory memorandum to the Bill that became the Act that ushered in s 4A of the Crimes Act and s 9C and the related provisions of the Sentencing Act, or in the Attorney-General's second reading speech in support of the Bill, suggested that, in cases where multiple (undifferentiated) acts in combination cause death, there should be any relaxation of the principles concerning contemporaneity.[24] Nor can I detect anything in the provisions to that effect.

101 Further, to take that approach is not to fail to give s 4A(3) any work to do. On the contrary, consider this illustration. If, say, Mr Lucas's push to the clavicle had been a punch to the head but had not caused injury, or had caused injury but had played no part in causing death, then, quite properly, it might be regarded as one of a series of punches of which the "operative" punches (i.e. the two punches to the head that combined to cause death) formed the balance of that series. Put another way, on those assumptions, s 4A(3) would operate to ensure that the mere fact that the operative two punches were part of a series of three (the second of which could not qualify under s 4A(2)) would not oust the operation of s 4A(2) or, therefore, any one of the four criteria in s 9C(3). Equally, however, such an approach would maintain obedience to the principle of contemporaneity.

102 In any event, it will be seen that, on my findings in this case, neither punch satisfies the criterion in paragraph (d) of s 9C(3), such that the result would be the same whichever construction were adopted.

Purely subjective states of mind; and intoxication

103 Two more preliminary points remain to be addressed before I turn to the substance of the contest under paragraphs (c) and (d).

104 First, both Mr Tovey and Mr Lewis agreed that each provision concerns a purely subjective state of mind - namely, paragraph (c) with respect to the victim's expectation and paragraph (d) with respect to the offender's knowledge.

105 Secondly, both counsel also agreed that it followed that intoxication was not excluded as a relevant consideration in determining whether the state of mind in question does or does not exist.[25]

106 In my view, both submissions should be accepted. The provisions employ purely subjective concepts - namely, expectation and knowledge - without qualification. Thus, intoxication, or any other consideration that might impinge on proof of a subjective state of mind, or an absence thereof, would be relevant to the ultimate issue.

Criterion 3: Whether Mr Blake not expecting to be punched or struck (s 9C(3)(c))

107 I turn then to the third criterion - namely, whether, within the meaning of s 9C(3)(c), Mr Blake "was not expecting to be punched ... by [Mr Lucas]".

108 Mr Tovey commenced his argument with the CCTV footage, which shows that, after Mr Blake had pointed to the front of the hotel and made some remark, Mr Lucas shook his head and said something in response. This, he submitted, is consistent with the evidence of Mr Gallagher and Mr Adams, who, respectively, heard Mr Lucas say something like, "Don't talk about my mate like that," and something about "my mate". It is also consistent with their observations of a noticeable change in Mr Lucas's demeanour. Mr Tovey also pointed to Mr Lucas's actions in placing something (his keys) on the window ledge and his physical movement, at which time Mr Blake is looking directly at him. This, Mr Tovey submitted, is consistent with Mr Blake also having noticed Mr Lucas's change in demeanour. Further, he submitted that, while still looking at him, Mr Blake must see Mr Lucas shift his body, cock his arm, and then throw the punch towards his head. In those circumstances, submitted Mr Tovey, despite his intoxication and his lack of defensive reaction, Mr Blake must have expected that a punch to the head was coming or, at the very least, it cannot be excluded as a reasonable possibility.

109 Mr Lewis submitted that, in assessing whether or not Mr Blake was expecting to be punched, it is important to note that there was little time between the first signs of Mr Lucas's aggression and the delivery of the first punch. In this respect, he cautioned against failing to allow for the potential distortion that comes with considering the CCTV footage in slow-motion. He also submitted that regard must be had to Mr Blake's high level of intoxication in judging his appreciation of events as they occurred. He accepted that there must be some point at which it can be said that a victim, whether intoxicated or not, has had so much time to perceive and react to a punch that, despite the absence of a physical reaction, the reasonable possibility that he was expecting to be punched cannot be excluded. But, in his submission, this was not such a case. There was only about a second or so between Mr Lucas's placing of the keys on the ledge and delivering the punch. In that context, submitted Mr Lewis, when regard is had to Mr Blake's lack of physical reaction and his level of intoxication, I should be satisfied beyond reasonable doubt that he did not expect to be punched to the head, despite his looking directly at Mr Lucas in the lead-up.

110 Mr Lewis also submitted that the notion of expectation in paragraph (c) should be construed as incorporating the absence of a reasonable chance for the victim to react or act defensively. Additionally, he submitted that the notions that a previous confrontation or warning might be ineffective to prevent satisfaction of the matters in paragraphs (c) and/or (d) were incorporated in ss 9C(4) and/or (5) respectively. This, he submitted, was consistent with ensuring that the gravamen of the provisions was not defeated. In this regard, he referred to the second reading speech of the Attorney-General when introducing the Bill which ushered in s 4A of the Crimes Act and s 9C and related provisions of the Sentencing Act:[26]

The intention is that the aggravating features capture the gravamen of a coward's punch attack, which is that the offender caught the victim unawares, completely off-guard, and in a sense, defenceless.

111 "Expecting" is the present participle of the verb "expect". According to the Macquarie Dictionary, to expect something to occur is to "regard [it] as likely to happen; [to] anticipate the occurrence or the coming of".[27]

112 On my view of the evidence, while Mr Blake's lack of defensive reaction or his drunkenness may suggest otherwise, I cannot exclude the reasonable possibility that he was expecting to be struck to the head by the first punch. As I have said, he was looking directly at Mr Lucas in the moments before that punch was thrown and right up until it struck him. Even if he did not see Mr Lucas put down his keys, he must have heard him speak aggressively, and seen him move his body into a punching position and then commence to throw the punch. While it is right to say that this all happened quickly, it was not so quick as to deny Mr Blake any reasonable chance to react. In my view, Mr Blake's lack of physical reaction can be explained by his just being too slow to react, perhaps in large part because of his level of intoxication, or perhaps because he simply froze (which does happen), rather than by his not expecting to be punched. Or perhaps his gentle disposition and an awareness of his great size combined to render him dumbfounded that anyone would attack him in this way.

113 Of course, I do not know why he failed to react. But it is not for Mr Lucas to establish any such thing. Instead, it is for the Director to prove, beyond reasonable doubt, that Mr Blake was not expecting to be punched. Proving a negative is a difficult thing at the best of times; but is all the more difficult when the person whose thoughts are being considered is not here to speak for himself.

114 I should say that, in my view, this case is somewhat different from the more classic coward's punch (or king hit) case at which the legislation was aimed. Consider these remarks in the explanatory memorandum to the relevant Bill:[28]

This provision applies where an offender, without any warning, hits someone from behind and to the back of their head, as well as other scenarios where an offender fatally assaults a person (such as, where the offender sprints up to someone from the side, and punches their head).

115 Each of those examples is what I think many would regard, at least in colloquial Australian English, as a "king hit" or, in verb form, to "king-hit".[29] In my view, Mr Lucas's assaults fit neither of those descriptions. That said, as the facts in DPP v Esmaili[30] show, the punch need not come from behind or the side to qualify as a "coward's punch" under s 9C(3)(c) or (d).

116 On the other hand, this is not a case like Esmaili, where it was plain that the offender, by placing his hands behind his back after a heated verbal confrontation, deceived his victim into believing that no violence would be forthcoming at all. In this case, by way of contrast, short of telling Mr Blake that he was about to throw a punch at his head, Mr Lucas's behaviour gave him almost every indication that that is exactly what was about to occur.

117 Before moving to the second punch, I should make the following additional points. First, in coming to the view that I am not satisfied that Mr Blake was not expecting the first punch, I have had regard as well to the terms of ss 9C(4) and (5). It might be said that Mr Lucas's behaviour immediately prior to the first punch - for example, making an angry remark, putting down his keys, shifting his body into an aggressive stance and cocking his right arm - did amount to a confrontation and/or a warning for the purposes of ss 9C(4) and/or (5), but an inadequate confrontation or warning at that.

118 That said, those provisions do not oust a "defence" based upon an inference that the punch or strike in question may have been expected simply because there has been a confrontation and/or a warning just prior to the punch. Instead, as I read them, the provisions simply point out, for the avoidance of doubt, the common sense propositions that a person may not be expecting a punch or strike to the head or neck despite a confrontation or warning prior to the punch or strike being delivered. In other words, each case will depend upon its own facts. As the example set out immediately below sub-section (5) points out, "[t]he offender might only warn the victim of the punch or strike so close to the time of the delivery of the punch or strike that the victim is not expecting to be punched or struck by the offender".[31] A particular illustration of that situation - and one consistent with the notion of a coward's punch (or what used to be called a king hit) - might be when an offender runs up behind his victim and yells out the instant before he hits him, so that the victim still had no expectation that he was about to be punched or struck.

119 In this case, whether they are described as matters amounting to a confrontation or a warning, or as simply those that might undermine the proposition that he was not expecting to be punched or struck by Mr Lucas, the fact of the matter is that, on all of the evidence, which I need not recite again, I am not satisfied beyond reasonable doubt that Mr Blake was not expecting Mr Lucas to punch him to the head.

120 Secondly, I also considered whether Mr Blake's level of intoxication effectively denied him the ability to appreciate that the first punch was coming or that, even if he did appreciate it, his intoxication denied him the ability to react in time, or otherwise reduced any such ability, which in turn might be thought to be enough to bring the matter within s 9C(3)(c). However, even if I were to act on the submission of Mr Lewis - which is to the effect that ss 9C(4) and (5) effectively give licence to construe paragraph (c) as incorporating the absence of a reasonable chance for the victim to react or act defensively - I still would not be satisfied that this criterion is established. This is because, in my judgment, there was sufficient time for Mr Blake to react defensively, even though he was very drunk, and his reaction time is likely to have been compromised. It must be remembered that Mr Blake and Mr Lucas were looking directly at each other. The reason why Mr Blake did not react in any physical way will remain a mystery. Again, however, it is not for Mr Lucas to solve that mystery but for the Director to prove, beyond reasonable doubt, that Mr Blake was not expecting to be punched to the head. And, to repeat, despite his lack of physical reaction and his high level of intoxication, I still cannot exclude the reasonable possibility that Mr Blake expected to be punched.

121 Thirdly, of course, in the event that counsel are wrong in submitting that the applicability of paragraphs (c) and (d) turns on the first punch only, then I must consider the second punch as well, to which I turn now.

122 That said, I did not understand Mr Tovey or Mr Lewis to make any submissions about the second head-punch under paragraph (c). Nevertheless, as it happens, I am satisfied beyond reasonable doubt that Mr Blake was not expecting to be punched to the head (i.e. the chin and/or mouth) by the second punch. While, as a matter of physiology, or peripheral vision, he may have been able to see the second punch coming out of the corner of his eye, I reject that possibility given that he was at least in a daze from the moment he was struck by the first punch. Further, whatever he may have perceived visually prior to the first punch, the fact that he was struck gave him some (albeit very little) time to react in some fashion - even if only to the sting of pain - to signify his awareness that he was about to be struck again, and yet there is not the merest indication in his movements at that point that he had any such awareness. On the contrary, while his legs seem to have moved in order to balance himself, that appears to be no more than an automatic reaction rather than any conscious, deliberate decision. Further, he makes no attempt to defend himself, despite, as I say, the time (brief though it was) in which he had to react. In the result, these things, in combination, satisfy me that he did not have the slightest appreciation that the second punch was even initiated, let alone an expectation that he was about to be punched to the head.

Criterion 4: Whether Mr Lucas knew Mr Blake not expecting (etc) to be punched

123 Finally, I turn now to whether I am satisfied beyond reasonable doubt of the fourth criterion - namely, whether, within the meaning of s 9C(3)(d), Mr Lucas "knew that [Mr Blake] was not expecting, or was probably not expecting, to be punched or struck by [Mr Lucas]". Given the way the matter was argued, it is convenient to deal with both head-punches together.

124 In summary, Mr Tovey relied on three matters as pointing to at least a reasonable possibility that Mr Lucas held a state of mind other than the knowledge (or belief) required by paragraph (d). First, he submitted that Mr Lucas's reaction to Mr Blake's story was immediate, spontaneous and explosive. It was completely incongruous with what had been occurring between the two men in the lead-up to the incident. In his submission, this leaves open the reasonable possibility that Mr Lucas simply reacted without thinking, so that he did not turn his mind to whether or not Mr Blake was expecting to be punched.

125 Secondly, he relied on the viva voce evidence and report of neuropsychologist Matthew Staios and Mr Lucas's intoxication. Mr Staios was of the opinion that Mr Lucas was capable of appreciating that, if he attacked Mr Blake without warning, Mr Blake might not be expecting the attack. He also accepted, however, that, given Mr Lucas's cognitive deficits and consumption of alcohol, at the time of this incident, his capacity to draw an inference about what was in Mr Blake's mind would have been compromised. This, in Mr Tovey's submission, is another matter casting doubt on whether Mr Lucas knew that Mr Blake was not expecting, or was probably not expecting, to be punched.

126 Thirdly, Mr Tovey submitted that Mr Lucas's behaviour - including his defensive stances or poses - before, at the time of and after each of the punches suggested that he believed that Mr Blake may punch him at any stage, which in turn is inconsistent with knowledge in Mr Lucas that Mr Blake was not expecting, or was probably not expecting, to be punched for the purposes of paragraph (d).

127 Mr Lewis, on the other hand, submitted that I should find that Mr Lucas knew that Mr Blake was not expecting, or was probably not expecting, to be punched to the head. Most significantly, the attack came without warning, a fact that must have been known to Mr Lucas. Mr Blake did not take up a posture suggestive of any awareness of an imminent punch. This lack of reaction, combined with the speed of events, in his submission, meant that Mr Lucas must have known that Mr Blake had no appreciation of what was about to occur.

128 Mr Lewis rejected the submission that Mr Lucas's defensive behaviour suggested that he believed Mr Blake was aware that he was about to be punched. Instead, in Mr Lewis's submission, Mr Lucas's defensive stance was merely indicative of a belief that he could not be confident that the first blow would knock Mr Blake down. In any event, he submitted, the mere raising of a defensive guard and an associated expectation that a blow might be returned does not necessarily exclude a belief that, prior to the first blow, Mr Blake was not expecting to be punched.

129 In Mr Lewis's submission, the defence argument to the effect that a spontaneous attack might not involve any thought as to whether Mr Blake was not expecting to be punched lacks any connection to real-world experience. He further submitted that the thought process required for a person to realise that a blow without warning will surprise his victim is miniscule and occupies but a fraction of a second. In Mr Lewis's submission, when an antagonist decides to punch another without warning, human experience tells us that he knows full well that it will surprise the victim. Furthermore, in this case, the CCTV footage shows that, immediately prior to throwing punches, Mr Lucas put down an object that he was holding on a windowsill. In Mr Lewis's submission, whilst putting the object down would not stand as a warning to Mr Blake, it is clear that doing so was an act undertaken by Mr Lucas in preparation for the attack. The fact that he took that preparatory step is indicative of a logical thought process, as opposed to an immediate explosive and unthinking attack. In Mr Lewis's submission, this goes to demonstrate a state of mind in which Mr Lucas was aware that Mr Blake was, at the very least, probably not expecting to be punched at that moment. Accordingly, he submitted that I should be satisfied that the requirement contained in s 9C(3)(d) is established on the evidence.

130 Mr Lewis also challenged the submission to the effect that, because Mr Lucas "shaped up" to one of the others present after striking Mr Blake, this is indicative that he believed that he was in a fair fight, thus indicating that he lacked the belief required by s 9C(3)(d). On the contrary, in his submission, that Mr Lucas was shaping up to bystanders after the attack is far more indicative that he knew he had done something wrong and was concerned that the observers present might, as a result, seek to confront him.

131 Finally, in Mr Lewis's submission, the report and evidence of Mr Staios identified no significant impediment to the foregoing analysis.

132 In my view, while it is difficult enough to prove, beyond reasonable doubt, a negative with respect to the state of mind of a victim who is not here to give his version, there is another order of difficulty in proving, to the criminal standard, that an offender knew that the victim held, or probably held, that negative state of mind. That is the heavy onus placed on the Director by s 9C(3)(d).

133 With that in mind, I turn to my findings. First, Mr Lucas appears to have been aware that Mr Blake was looking directly at him before the first punch. In fact, they were looking at each other.

134 Secondly, Mr Lucas engaged in both attacking and defensive behaviour preceding, at the time of, and after both punches. His attacking behaviour is obvious enough - namely, the punches. His defensive behaviour involved keeping his left fist up in a classic defensive position and continually bouncing around as if he might have needed to evade a defensive or attacking punch from Mr Blake.

135 Thirdly, that no defensive or attacking behaviour ever came from Mr Blake is not to the point. Instead, from first to last, Mr Lucas's behaviour suggests to me that he believed he needed to be ready to defend himself at any point because, the instant he showed aggression, Mr Blake would be expecting to be punched to the head or neck and therefore would attempt to retaliate or defend himself. Or, at the very least, I find myself unable to exclude the reasonable possibility that he held those thoughts prior to, in the course of delivering, and after each punch.

136 Of course, it is possible that, on this occasion, Mr Lucas chose to shape up in a way that had him leading with his left in an orthodox defensive stance, but also with a belief that, at least for the first blow, he would catch his opponent unawares. But, as much as I must attempt to employ inferential reasoning, I cannot read Mr Lucas's mind. All I can do is assess the evidence in a dispassionate fashion and apply the burden and standard of proof to the resolution of the legal tests in question. And, when that is done, I simply find myself unable to exclude the reasonable possibility that Mr Lucas believed Mr Blake was aware that a punch to the head (or, at least, an attempt at such) was coming, and on each of the two occasions.

137 In those circumstances, it follows that I am not satisfied, beyond reasonable doubt, that Mr Lucas knew that Mr Blake was not expecting, or was probably not expecting, to be punched to the head by him on either occasion, because the reasonable possibility of a belief that Mr Blake would retaliate prior to each of his punches is inconsistent with that requirement of knowledge.

138 Again, this is not a case like Esmaili, where the offender, by placing his hands behind his back after a heated verbal confrontation, deliberately lulled the deceased into a false sense of security and then launched a withering blow to his head, knowing (or believing) that the deceased had no idea that any such punch was coming. There was nothing deceptive about Mr Lucas's behaviour. On the contrary, while it happened quickly, it is obvious that he became angry, that his gaze met Mr Blake's and that he threw both punches in the belief that he was in a fight - during which punches would be traded. That the fight turned out to be a one-sided assault does not defeat the point.

139 Further, while it is unnecessary to my conclusion, there is an alternative reason why I am not satisfied of the criterion in paragraph (d) in respect of each punch. It is plain that Mr Lucas was angry and heavily affected by alcohol - as is demonstrated by his aggression, his ungainly movements and his partial miss with his first punch, despite having the easiest of targets. In my view, in that angry and drunken state, there is at least a reasonable possibility that Mr Lucas did not even consider whether Mr Blake was not expecting to be punched. Instead, it is reasonably possible that he just lashed out without thinking.

140 Finally, I should add two further things. First, I have arrived at both of those conclusions without resort to the evidence of the neuropsychologist Mr Staios. While I accept Mr Staios's opinion concerning Mr Lucas's reduced capacity to infer what might be in another's mind, and I also accept that that evidence adds to the defence argument that I should not be satisfied of the test in paragraph (d), I simply considered it unnecessary to my conclusions.

141 Secondly, I did not rely on the defence argument that Mr Lucas's post-assault aggression towards Mr Adams assists his cause under paragraph (d). That is not to say that I accept Mr Lewis's submission to the contrary. Instead, I simply regarded these competing submissions as neither necessary to, nor undermining of, my conclusions.

142 In the result, either way, the fourth criterion in s 9C(3) is not established.

143 Accordingly, the coward's punch sentencing regime does not apply to this case.[32] Instead, the more conventional approach to sentencing applies.

144 I turn now to the other factors to which regard must be had in sentencing, commencing with the victim impact statements.

145 A total of five such statements were filed. Two were read to the Court, one by the author, the other by the prosecutor. In particular, the statements were made by Mr Lucas's mother Nancy Blake, his sisters Sharon Blake and Tamara Brand, and two of his brothers Jason Blake and Trevor Blake. I also read the statements when I first received them and again in chambers.

146 Mrs Blake describes her son as a gentle giant. She explains how, after her husband died following a long illness, David was always there to give her support and a big bear hug. He was always kind to others. The week before he died, he told her that she made him the best stew ever. Now, she feels "gutted" and misses him every day. She is at a loss to say when the pain of losing him will go away and when she might find some peace. She still does not understand why this happened.

147 Sharon Blake is angry, disappointed and hurt. She is drained and emotionally fatigued. She is haunted by memories of her brother lying where he died, especially when she drives past the hotel. She does not want to see people or socialise or to talk about it. She prefers to stay in her room. None of this should have happened.

148 Tamara Brand is overwhelmed with grief, anger and helplessness. She has cried uncontrollably and is undergoing psychological intervention. She is anxious, depressed and also has psychosomatic reactions. She has PTSD, including flashbacks of her brother's feet poking out from under a white sheet. She feels she failed him. On the other hand, she remembers him as being extremely funny, quick-witted and with a heart of gold. It shatters her to know that her brother died in a violent way. For her, life will never be the same.

149 Jason Blake has found it hard to sleep. He cannot help feeling how senseless and so preventable his brother's death was. When he goes out, he feels like he is constantly watching his back, because he fears that life can be taken so easily. Little things cause him to break down and cry. He feels that it is pointless to plan anything, as he too may just be killed one day. He was close to his brother and misses him terribly.

150 Trevor Blake has been seeing a grief counsellor. He finds it hard to take his sheep to market and, inexplicably, finds himself crying when he does so. He can no longer watch sports like boxing or martial arts, which he used to enjoy. He remembers changing his baby brother's nappies, who was fourteen years younger than him. They had a special bond. He drives his brother's ute but feels sick when people comment on it. Everywhere he goes, people tell him that time heals, but that has not been his experience. It is worse now.[33]

151 These victim impact statements convey, most eloquently, the aching grief of a family struggling to cope with the untimely, violent and unlawful death of their loved one.

152 In so far as it is permissible to do so, I have had regard to their contents in considering sentence.

153 But I wish to add this. There is nothing this Court can say or do that will heal the grief and pain suffered by Mr Blake's family and friends. The sentence I must impose is not a reflection of the worth of Mr Blake's life - as if anything so precious could ever be valued in any event. Rather, the sentence I am about to impose reflects many factors which I am required by law to consider and balance, only one of which is the impact on victims.

154 I turn now to an assessment of the nature and gravity of the offence.

155 While manslaughter is one of the more serious crimes known to the law, the circumstances of its commission, and the resulting sentences, vary widely. Usually, voluntary manslaughter (which no longer exists in Victoria since the abolition of provocation as a defence to murder) is the category regarded as the most serious; then manslaughter by unlawful and dangerous act is usually a rung lower; and then manslaughter by criminal negligence is usually another rung further down. But there is no inflexible rule. Each case turns on its own facts.

156 This instance of manslaughter by unlawful and dangerous act had some serious features, including the following:

(a) First, the offence is serious, by definition. As well as carrying a maximum penalty of 20 years' imprisonment, the offence involves the loss of life of another human being - a son, a brother, an uncle, a friend - as a result of unlawful and dangerous behaviour.

(b) Secondly, inevitably, and as the victim impact statements make so plain, the grief and pain for the loved ones left behind is palpable. Further, when a child (even an adult child) pre-deceases his mother, it reverses the natural order of things and is all the more difficult to comprehend.

(c) Thirdly, it is not suggested that there was any meaningful provocation or any other substantial reason for the assault that might justify or otherwise explain Mr Lucas's behaviour.

(d) Fourthly, Mr Lucas punched Mr Blake, not once, but twice.

(e) Fifthly, the punches were to the head, and intentionally so, which is a vulnerable part of the body.

(f) Sixthly, while Mr Blake might have defended himself, he made no attempt to do so. Indeed, despite the findings I have made regarding the coward's punch regime, and while the second blow came quickly after the first, I still think it was an even lower act to throw that second punch than it was to throw the first one. Instead, having done a bad enough thing by throwing the first punch, he should have waited to see how Mr Blake handled it before throwing the second. As it turned out, and despite my inability to exclude the reasonable possibility of a belief inconsistent with proof of s 9C(3)(d) in respect of either punch, the fact of the matter is that Mr Blake was in a daze and completely helpless at the time the second blow struck.

(g) Seventhly, Mr Lucas's behaviour immediately after the second punch suggested that he was keen to continue the assault, if only Mr Blake would fight back.

(h) Finally, while it is a post-offence feature, Mr Lucas's flight from the scene was reprehensible. Once he saw what he had done, even if he only thought he had knocked him out (which is likely), he should have done the decent thing and stayed and tried to help Mr Blake.

157 Before addressing the factors pointing in the other direction, I should mention that it was not urged by Mr Lewis that I should be satisfied that Mr Lucas's violence would meet the common law test of dangerousness. Instead, as I understood him, while the circumstances may well have met that test, the Director had brought her case only on the basis that the two punches were dangerous by virtue of the deeming provision in s 4A of the Crimes Act.

158 On the other hand, he submitted that the absence of a finding that common law dangerousness was established, in and of itself, made no difference in the scheme of things. This is because it is to be assumed that, by treating the behaviour falling within s 4A as if it were dangerous, the legislature has made an emphatic statement about the relative gravity of such behaviour. The only qualification that might be added, in his submission, is that s 4A was enacted at a time when there was a greater appreciation, both by the legislature and society in general, that these sorts of one-or-two-punch attacks can result in very serious consequences, including death. Otherwise, in his submission, once the legislative hurdle of liability under s 4A is cleared, the gravity of the particular offence is to be assessed in the usual way, such as by looking to the particular features involved in and surrounding the commission of the offence. That is what I have sought to do thus far and shall continue to do now. Mr Tovey said nothing against these submissions.

159 With that in mind, there are, I think, several factors limiting the gravity of this instance of manslaughter, including the following:

(a) First, while there was violence in the punches, no weapon was used.

(b) Secondly, there was no gratuitous kicking, punching or the like while the victim was prostrate, as sometimes happens.

(c) Thirdly, while there were two punches, they were thrown in reasonably quick succession and the assault was neither protracted nor savage.

(d) Fourthly, the assault was spontaneous rather than premeditated.

(e) Fifthly, while the punches were aimed at Mr Blake's head, I am not satisfied that Mr Lucas had an intention to cause injury. Similarly, while the fact that he was knocked unconscious may not have been a complete fluke, as I intimated earlier, I think that the way in which Mr Blake fell into the second punch, which could not have been predicted, meant that that punch, unfortunately, had more timing and force than might have been expected when it was initiated.

(f) Finally, while history shows that even relatively minor assaults, including those that involve a single punch, can result in grave injury or death, I am not satisfied that Mr Lucas foresaw the risk of any such thing. Instead, like the patrons at the hotel, I think he expected Mr Blake to be all right.

160 Taking up the last point, it is true that many an assault like this would result in nothing more than a bit of bruising and maybe a fat lip. But, as I have sought to explain, and as Parliament has tried to reflect in legislative form, there is now a realisation that assaults of this nature can cause death. And, for better or worse, the criminal law attaches great weight to that consequence. That is not to diminish arguments about the nature of the assault and its attendant features. Instead, it is simply to recognise the central importance, to the questions of liability and sentence, of the fact of death, even if its occurrence be accidental, as it was here.

161 While I recognise that there are limitations in employing any sort of taxonomy, when the foregoing matters are balanced, I think that this case is far from the worst examples of manslaughter but is not at the lowest end of the scale either. Instead, it falls somewhere within the broad mid-range of objective gravity.

162 I turn now to Mr Lucas's background and personal circumstances in more detail, as conveyed by Mr Tovey.

163 Mr Lucas had a rather unfortunate early life. He grew up in the Ballarat area with his parents and his younger brother. However, his parents separated when he was young. He has had nothing to do with his father since then. His mother was an alcoholic. She had several partners, who were heavy drug and/or alcohol users and caused the family to move from place to place. Mr Lucas and his brother were often subjected to various forms of emotional abuse from their mother; and physical abuse was often meted out by the partner of the day.

164 By the age of twelve, Mr Lucas spent as much time outside the home as he could. He formed friendships with boys in similar positions. They began to drink alcohol and often got into trouble with police. This saw him end up in the Children's Court from the age of thirteen. He also dabbled in illicit drugs, especially cannabis.

165 Mr Lucas lived this early life without much parental guidance. He left school in Year 8. Within a couple of years, still only a young teenager, he was detained for a total of about twelve months in a youth training centre for various offences, including burglary, theft and unlicensed driving.[34]

166 After his release from youth detention, he lived in boarding houses and halfway houses. At that time, he was introduced to heroin, which enveloped his life for the next decade. During that period, at the age of 22, he was convicted in the County Court of drug trafficking and other offences. He was sentenced to two-and-a-half years' imprisonment with a non-parole period of fifteen months. Later, he also received a sentence of about six months' gaol for offences including assault and burglary.

167 He also fathered a daughter during this period. Sadly, he has not seen her for over fifteen years. She would be in her twenties now.

168 Fortunately, however, at the age of about 27 or 28, in about 2005 or 2006, Mr Lucas was offered a job by an associate, which quickly turned into an apprenticeship in plastering, to which he committed himself and completed.

169 From that point, his life took a completely different trajectory. He moved from Ballarat to the Creswick area, in part at least to be away from his associates in adolescence. He instructs Mr Tovey that the reason he does not have more friends to call upon to vouch for him in this hearing is that those with whom he formed longstanding friendships in his formative years are now either dead from drug overdoses or are spending significant periods incarcerated for drug-related crimes. His other motivation for moving to Creswick was to rekindle his relationship with his mother.

170 Ever since then, he has lived a rather solitary life. He ceased intravenous drug use; cut himself off from his associates; and focused on his work as a sub-contracting plasterer.

171 He would often drink alcohol alone and smoke cannabis too. As will be seen shortly, his court appearances in 2014 and 2016 would appear to reflect an interest in cannabis.

172 I turn now to the detail of Mr Lucas's criminal history, which includes diverse offending from 1998 to 2016. Unless indicated, all sentences were imposed in the Magistrates' Court:

• In 1998, he was fined for wilfully damaging property.

• Later in 2000, in the County Court, he was imprisoned for two-and-a-half years with a non-parole period of 15 months for trafficking in heroin and reckless conduct endangering serious injury.

• In 2003, he was imprisoned for a total of 190 days for burglary, theft, failing to answer bail and assault. There were in fact three assaults, which attracted an aggregate sentence of 30 days' gaol, which was cumulative upon sentences of 160 days' gaol for burglary and theft.

• In 2005, he was fined for possessing goods suspected of being stolen.

• Later in 2005, he was sentenced to three months' imprisonment, wholly suspended, for driving offences and possessing a controlled weapon.

• In 2007, in the County Court, he was sentenced on appeal to a total of six months' imprisonment, wholly suspended, for driving whilst suspended, possessing a controlled weapon and breaching a suspended sentence.

• In 2014, he was fined for possessing cannabis and theft.

• In 2016, he was placed on a community correction order for cultivating cannabis.

173 I turn now to the mitigating factors on which Mr Tovey relied.

174 First, having fled the scene, Mr Lucas handed himself in to police at 6:30 a.m. the same morning.

175 Secondly, Mr Lucas pleaded guilty to the charge of manslaughter.

176 While the plea was not entered early, chronologically speaking, there are important qualifications to that statement. First, Mr Lucas offered to plead guilty to manslaughter at an early stage, albeit on the proviso that the Director did not seek to invoke the coward's punch provisions. That offer was rejected. But, now, his stance has been vindicated.

177 Secondly, his plea was entered without running a contested committal hearing. Apart from the two witnesses examined briefly in this Court, both of whom were important to the coward's punch regime dispute, Mr Lucas's chosen course relieved potential witnesses of the ordeal of giving evidence and saved the considerable resources that would have been devoted to a committal hearing (as well as a trial, of course). As other judges of this Court have observed recently, this utilitarian benefit is increased at the present time given the backlog of trials in the wake of the COVID‑19 pandemic.[35]

178 Finally, the plea was entered knowing that the Director would argue that the coward's punch regime was applicable, which, as I have explained, is much more onerous than the conventional regime for a case like the present.

179 In those circumstances, I accept that the plea of guilty should be treated as if it were an earlier plea, that it indicates a willingness to facilitate the course of justice and that it is a matter of significant weight in mitigation.

180 Thirdly, I am satisfied that Mr Lucas has some remorse for his crime, albeit I would not classify it as utter remorse. There are four sources of evidence that drive me to that conclusion.

181 First, his actions immediately after the assaults and in fleeing the scene tell against remorse at that time.

182 Secondly, however, his decisions to hand himself in and plead guilty tend to demonstrate remorse and an acknowledgment of responsibility.

183 Thirdly, Mr Tovey indicated that Mr Lucas was made aware of the contents of the victim impact statements, including those that were not read in Court. Mr Lucas, again through Mr Tovey, indicated that he deeply regrets his actions and the impact that he has had on so many others. He accepts that Mr Blake is a man who in no way deserved to lose his life on this tragic night.

184 Finally, in his report, Mr Staios said this about remorse:

Mr Lucas expressed remorse for his actions and the impact that his offending has likely had on the victim's extended family. For example, he did not only express remorse for his actions which resulted in the death of the victim, but he was also able to appreciate the emotional toll that his actions have likely had on the victim's [family].

185 As I say, in those circumstances, I am satisfied that there is some remorse. While I do not mean to diminish the importance of his later actions and thoughts, I would have been more impressed, and would have found a greater level of remorse, if Mr Lucas had stayed at the hotel and tried to assist Mr Blake immediately after he went to ground.

Impact of traumatic early life on moral culpability

186 The fourth matter in mitigation urged was that Mr Lucas was exposed to chaos, disruption, violence and alcohol abuse to such an extent in his formative years that his moral culpability in committing this violent offence is less than it might be otherwise.

187 In their joint judgment in Bugmy v The Queen, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said this:[36]

[43] ... The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest ... that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

188 In all the circumstances, I am satisfied that Mr Lucas does, to some extent, fall within those principles. (Mr Lewis, I should add, did not argue to the contrary.) In particular, I think that his exposure to alcohol abuse and violence in his early life helps explain his recourse to violence when frustrated, such that his moral culpability for the inability to control that impulse is somewhat reduced.

189 As I have said in other cases when this principle has been raised, however, none of this means that the offender's moral culpability is reduced to nought. Mr Lucas's moral culpability for his behaviour still must be significant. But, consistently with the High Court's reasoning, it is simply reasonable to expect that a boy who is exposed to such violent and destructive ways would grow up to become a man who might consider resorting to such violence, as Mr Lucas has done in the past and did so in the present case, but without the usual wherewithal to refrain from doing so, which in turn reduces his moral culpability somewhat.

190 Equally, however, it is also important to recognise, as the High Court did in the last line of the passage extracted a moment ago, that the inability to control violent responses to frustration may increase the need to protect the community from the offender. Mr Tovey submitted that Mr Lucas's many years of reformative behaviour (at least in respect of matters of violence) before this offence and his good prospects of rehabilitation offset any such argument. I did not understand Mr Lewis to argue to the contrary.

191 In my view, while Mr Lucas's history of violent offending is not nearly as bad as is commonly seen in this Court, while over seventeen years have now passed since his previous assault-based offences were before the courts, and while, as I shall explain shortly, I do accept that he has reasonable to good prospects of rehabilitation, nevertheless, I think that there was a disturbing and unexplained aspect to his assault on Mr Blake that convinces me that community protection still has at least some importance in the sentencing calculus for this offence.

192 The fifth matter in mitigation concerns Mr Lucas's prospects of rehabilitation.

193 His plea of guilty and remorse both point towards better prospects of rehabilitation. Further, he retains the support of his brother and his mother, who is now elderly. These are all positive indicators.

194 While he has a criminal history and has been imprisoned before, including for 30 days for three assaults, those convictions are old enough to be regarded as rather stale, and plainly did not have the tragic result that occurred in this case.

195 Finally, I think it is very significant that Mr Lucas overcame a very deprived and criminally-oriented early life and had the courage and the wherewithal to put that behind him and become productive. Indeed, Mr Lucas now has a strong work history. He strikes me as the type who will work productively again upon his release from prison.

196 Overall, I assess Mr Lucas's prospects of rehabilitation as reasonable to good.

197 The sixth matter in mitigation urged by Mr Tovey concerned the consequences of Mr Lucas's extremely low intelligence, slow information processing and limited emotional regulation and reasoning skills. Mr Staios opined that these cognitive and psychological deficits reduced Mr Lucas's ability to make calm and rational choices and appreciate fully the wrongfulness of his conduct. Ultimately, Mr Tovey submitted that these matters reduced Mr Lucas's moral culpability for the offending and that I should regard the need for general deterrence to be moderated somewhat as well. He also accepted, however, that any mitigatory impact of these considerations may be reduced because these afflictions were exacerbated by self-induced intoxication.

198 Mr Lewis submitted that, while it is plain that Mr Lucas has various cognitive deficits, Mr Staios's evidence does not adequately prove that the afflictions asserted actually had any meaningful impact on Mr Lucas's ability to make calm and rational choices or to appreciate fully the wrongfulness of his conduct. In the alternative, he submitted that, if there is sufficient threshold evidence to support Mr Tovey's submissions, it is only barely so. Further, having regard to Mr Tovey's concession regarding the complicating effect of self-induced intoxication, the weight to be accorded to these matters in mitigation is only minimal, at best.

199 In my view, Mr Lewis's alternative submission is to be preferred. I accept that Mr Lucas's deficits were such that, at the time of the offending, he had a reduced ability to make calm and rational choices and appreciate fully the wrongfulness of his conduct, but only marginally so. Further, when regard is had to Mr Lucas's intoxication as well, the evidence can sustain only a very minimal reduction in both moral culpability and the weight to be accorded to general deterrence.

200 Finally, I am satisfied that the hardship of imprisonment for Mr Lucas will be greater than usual for as long as the COVID-19 pandemic is operative.

201 From March last year, personal visits were suspended in Victoria's prisons, as were educational programmes and many recreational activities. Prisoners have been kept "locked down" in their cells for far longer periods. Those restrictions were relaxed somewhat in December. I assume that the recent lockdown meant a return to the more restrictive regime. In any event, Mr Lucas has been in custody throughout this period. Further, there is the ever-present feeling of vulnerability to contracting the virus in an environment over which the prisoner has no control.

202 Just how long the virus will remain a threat, or how long these restrictions - at whatever level they are at the moment - will remain in prisons, is unknown. Happily, things improved markedly towards the end of last year and there is hope that an effective vaccine will be available sooner or later, although there is still a substantial degree of uncertainty.

204 Section 5(1) of the Sentencing Act provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

General deterrence, denunciation and just punishment

205 In my view, general deterrence, just punishment and denunciation are important sentencing purposes in this case of manslaughter. The community should understand that violent behaviour of the type engaged in by Mr Lucas is denounced by the courts and will result in a substantial term of imprisonment that reflects that a person's life has been taken by that unlawful and dangerous behaviour and that, in this case, the lives of Mr Blake's loved ones have been marred forever in consequence.

Specific deterrence and protection of the community

206 I am satisfied that only rather modest weight is to be accorded to specific deterrence and protection of the community. This is because, while Mr Lucas has been imprisoned previously for assault, and while I am troubled about the unexplained nature of this offence, those factors are (or will be) offset somewhat by the passage of time and his plea of guilty, remorse and prospects of rehabilitation.

Rehabilitation and protection of the community

207 While I have assessed Mr Lucas's prospects of rehabilitation as only reasonable to good (rather than, say, very good or excellent), I think that rehabilitation remains an important purpose in fixing sentence. There are at least two reasons.

208 First, that Mr Lucas has positive prospects of rehabilitation makes rehabilitation a sentencing purpose that must be afforded weight.

209 Secondly, I think it is important to recognise the interplay between rehabilitation and protection of the community in any event. Mr Lucas will be returning to the community ultimately. It is therefore in the community's interests that such prospects of rehabilitation as he has be maximised, and that he is not crushed, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into society are also as strong as they can be.

210 Section 5(3) of the Sentencing Act, relevantly, provides that "a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed". This provision reflects the common law principle of parsimony. It is a fundamental principle, sometimes forgotten. I have applied this provision and this principle when considering the appropriate sentence in this case.

211 In so far as I can determine them, I have had regard to current sentencing practices for manslaughter.

212 Sentencing statistics show that, for the period from 2013-14 to 2017-18, prison sentences for manslaughter ranged from about one-and-a-half to twelve years' imprisonment; that the average (or mean) sentence ranged from about six years and eleven months' imprisonment in 2013-14 to nine years' imprisonment in 2017-18; and that the median sentence was eight years' imprisonment, as was the mode. During the same period, non-parole periods ranged from two years to ten years; the median non-parole period was five-and-a-half years; and the modal non-parole period was six to less than seven years.[37]

213 These statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations - such as the form of manslaughter, the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.

214 These statistics also support the view that sentences for manslaughter have increased significantly over the last couple of decades or so. Indeed, this is the type of case that today attracts a sentence much heavier than it might have attracted 20 to 25 years ago.

215 Sometimes, case comparisons can be a useful tool in gauging current sentencing practices.

216 Five relatively recent cases of manslaughter appealed to me as more helpful than most, as each concerned an instance in which the deceased had been punched only once, twice or a few times and died in consequence. Those cases are Vincec v The Queen,[38] Lee v The Queen,[39] Esmaili,[40] R v Nolan[41] and R v Rivett.[42] Instead of cluttering these reasons with detailed case summaries, I have included those summaries as an appendix. That said, I make the following points of comparison and contrast.

217 The sentences imposed in those cases ranged from seven years' imprisonment with a non-parole period of four-and-a-half years in Nolan; to eight years' imprisonment with a non-parole period of five years in Vincec and Lee; to nine years' imprisonment with a non-parole period of six years in Rivett; to ten-and-a-half years' imprisonment with a non-parole period of ten years in Esmaili.

218 Mr Lucas's assault appears to be of similar gravity to those of Mr Vincec, Mr Lee, Mr Nolan and Mr Rivett, but perhaps not quite as grave as that of Mr Esmaili (which involved only one punch, but attracted the coward's punch regime). Neither Mr Vincec nor Mr Lee had any prior convictions, whereas Mr Esmaili had a significant criminal history and Mr Rivett had a long history of violent offending. Mr Lucas falls somewhere between those two extremes, but is without the benefit of Mr Esmaili's relative youth. On the other hand, Mr Nolan and Mr Rivett each had an extremely dysfunctional childhood; Mr Esmaili's and Mr Lucas's were little better; and Mr Nolan also suffered from several other serious afflictions. Indeed, it might be said that the relatively low sentence imposed on Mr Nolan is explained in large part by the existence of his unusual combination of grave afflictions. Both Mr Vincec and Mr Lee had more impressive and promising prospects of rehabilitation than Mr Lucas, and substantially more so than either Mr Esmaili or Mr Rivett.

219 Overall, my impression is that Mr Lucas's case warrants a sentence heavier than those imposed on Messrs Vincec, Lee and Nolan and similar to Mr Rivett's. Plainly, Mr Esmaili's head sentence is longer than it might have been because he did not have the benefit of a plea of guilty, but is otherwise shorter because of his relative youth (at only 24). Further, his whole sentence, but especially his non-parole period, is incomparable given the application of a different sentencing regime.

220 It is possible to make more nuanced comparisons between the foregoing cases, the present case and others. But, in the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. While a couple were quite similar, none of those I considered was on all fours with the present case. And, in any event, sentences are not precedents to be applied or distinguished.

221 Nevertheless, I have found the other sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for manslaughter, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors, particularly where the deceased is killed by an assault similar in nature and objective gravity to that which Mr Lucas perpetrated in this case.

222 In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the circumstances of this case and sentencing principles to arrive at the appropriate sentence for this offence of manslaughter.

225 Mr Tovey conceded that the only available sentence is a substantial term of imprisonment with a non-parole period. That said, he also submitted that it would be in the best interests of both the community and Mr Lucas that the sentence be structured in a way that allows him the opportunity to serve a substantial part of that sentence in the community on parole. Mr Lewis did not gainsay that submission.

226 Balancing all matters as best I can, I have concluded that, for the manslaughter of Mr Blake, Mr Lucas will be convicted and sentenced to nine years' imprisonment.

227 I fix a non-parole period of six years. Consistently with Mr Tovey's submission, this will afford Mr Lucas the potential to reintegrate into the community over a substantial parole period. Whether and, if so, when he is granted parole will be a matter for the Adult Parole Board.

228 Pursuant to s 18 of the Sentencing Act, I declare that, including today, 461 days of pre-sentence detention be reckoned as served under this sentence.

229 While it is always a difficult thing to estimate, pursuant to s 6AAA of the Sentencing Act, I declare that, had Mr Lucas pleaded not guilty to manslaughter but been found guilty of that offence following a trial, I would have imposed a sentence in the order of eleven years' imprisonment with a non-parole period of eight years.

230 One final matter. Obviously, the CCTV footage was central to this case. I assume many in the community would expect to see that footage on their daily news or somewhere on the internet. But that will not be happening. This is why.

231 Trevor Blake and Tamara Brand made it clear in their victim impact statements that they were troubled that the media might apply successfully for release of the CCTV footage. They were worried that, if it were released in that way, they might stumble on the footage inadvertently on television or the internet and be disturbed by it. They desperately wanted to avoid having to relive this horrible event, whether by seeing it or hearing others pointing out things about it to them. Ms Brand reiterated her stance when I asked her about this directly in Court after she had read out her victim impact statement. That, of course, was an entirely understandable position to take.

232 While it is very hard to watch, and no doubt even more distressing for Mr Blake's loved ones, the hope in releasing the footage to the media would have been that those who saw it - especially those who might be minded to engage in behaviour of the type shown - might come to understand just how vulnerable human life can be and the agony that such behaviour inevitably must cause to those who are left behind to grieve. Indeed, I should have thought that the few seconds of footage of Mr Lucas's actions and Mr Blake's sickening demise may well send a more salutary message than any words uttered, or sentence imposed, by this Court in this or any other case of this kind. Individuals, of course, would have been required to make their own judgments, but I think there is a powerful argument that it would have been compulsory viewing for many, and especially quick-tempered, punchy males, troubling though it is.

233 Further, in circumstances where the CCTV footage has proved to be such an important piece of evidence in a public hearing, I think that, at least in this particular case, it is arguable that transparency might have dictated that it be available to be studied by anyone who wished to see it. In that way, the public might be better informed in forming their own opinions.

234 In the end, however, I determined that it was preferable that I decline any application to release the CCTV footage to the media. As much as I think it would have been in the public interest to release it, I could not help but be moved by the plight of Mr Blake's family. I did not - and do not - wish to add to their suffering by releasing the footage. Equally, others who might be interested in this case at least deserve an explanation why the footage has not been released. So, there it is.

235 I should add that, as things turned out in the end, no media outlet made an application for release of the footage. Presumably, they heard - and, what is more, heeded - what Mr Blake and Ms Brand had to say.

Vincec v The Queen [2018] VSCA 18

Justice Weinberg refused leave to appeal against a sentence of eight years' imprisonment with a non-parole period of five years imposed for manslaughter in the following circumstances.

The two protagonists began "chesting" each other over something as trivial as ill-feeling following Mr Vincec's treatment of Mr Walker's former partner and Mr Walker's failure to shake Mr Vincec's hand and then his use of an aggressive handshake. Cross words and a scuffle ensued during which others tried to intervene. At some point, Mr Vincec quickly reached around an intervener and punched Mr Walker once to his left cheek. Mr Walker immediately fell to the ground, hitting his head on the road. He was unconscious from that moment on and died six days later in hospital. Mr Vincec ran away from the scene. Shortly thereafter, police intercepted him elsewhere. When first questioned, he denied having been involved in any fight. Soon after, however, when formally interviewed, he admitted to what he had done.

Mr Vincec, who was aged 26, had prior appearances for offences of violence committed between the ages of 16 and 18, but none since. He had a history of using illicit drugs, but had a good job, a young family and very good prospects of rehabilitation. He pleaded guilty at an early stage and was remorseful. In Weinberg JA's view, it was not reasonably arguable that the sentence was manifestly excessive.

Lee v The Queen [2018] VSCA 343

The Court of Appeal (constituted by Ferguson CJ, Priest and Beach JJA) refused leave to appeal against a sentence of eight years' imprisonment with a non-parole period of five years imposed for manslaughter in the following circumstances.

Mr Lee (aged 33) punched Mr Cronin (aged 19) to the right side of his head near his right ear. When he did so, several men were brawling in the immediate vicinity. It is clear, however, that when he was punched, Mr Cronin was not involved in the fighting going on around him. Indeed, when he was fatally struck, he was attempting to pull one of his friends away from the fighting. He had not acted aggressively towards Mr Lee and had not provoked him. The blow struck by Mr Lee caused Mr Cronin to suffer an acute extradural haemorrhage leading to a brain injury from which he died.

Mr Lee was trained in Muay Thai (a martial art said to be reserved for situations of self-defence), but had a young family, a strong work history and no prior convictions. He appeared to have very good prospects of rehabilitation. While initially he pleaded not guilty to manslaughter and a trial commenced, soon afterwards, he changed his plea to guilty and the prosecution withdrew an application for the imposition of a mandatory non-parole period of at least ten years under the coward's punch provisions. The Court held that the sentence was not manifestly excessive.

DPP v Esmaili [2019] VSC 218; Esmaili v The Queen [2020] VSCA 63

In 2019, Hollingworth J imposed a sentence of ten-and-a-half years' imprisonment with a non-parole period of ten years following Mr Esmaili's conviction at a jury trial for the manslaughter of Patrick Pritzwald-Stegmann, who was a surgeon at the Box Hill Hospital. On 30 May 2017, Mr Esmaili became involved in a heated verbal exchange with Mr Pritzwald-Stegmann in the entrance area of the hospital over a complaint about smoking. After deliberately lulling his victim into a false sense of security by putting his hands behind his back, Mr Esmaili launched a withering punch to the head, which knocked Mr Pritzwald-Stegmann unconscious. He fell to the floor immediately, without any attempt to break his fall. When his head hit the floor, Mr Pritzwald-Stegmann sustained the catastrophic brain injuries which led to his eventual death. Mr Esmaili fled.

Mr Esmaili was only 24 at sentence, suffered from mental disorders and displayed some remorse, but also had an entrenched history of illicit drug use, was on bail at the time of the offending and had a substantial criminal history (albeit not for violent offences, except an armed robbery).

Three of the key differences in his case (as compared with Mr Lucas's case) are that Mr Esmaili was young (at 24), that he did not plead guilty and that he was held to be subject to the coward's punch sentencing regime - which explains the unusually high non-parole period.

On an appeal, the Court of Appeal held that Hollingworth J was correct to have applied that sentencing regime (Esmaili v The Queen [2020] VSCA 63 (Priest and Kyrou JJA and Croucher AJA)).

R v Nolan [2020] VSC 416

Only last year, Taylor J imposed a sentence of seven years' imprisonment with a non-parole period of four-and-a-half years upon a plea of guilty to manslaughter in the following circumstances.

While sitting on a bench in a shopping centre, Mr Nolan (aged 36) and Mr Boothey (aged 51), who were unknown to each other, engaged in a heated verbal exchange. Mr Nolan left. A few minutes later, Mr Nolan again walked towards Mr Boothey (who was extremely drunk). Mr Boothey stood up and walked towards Mr Nolan, who took up a boxing stance with both fists held at chin height. Mr Nolan accepted that he had an intention to assault Mr Boothey from that moment. Mr Boothey also took up a boxing stance. Mr Nolan (who was also drunk) immediately threw a punch to Mr Boothey's face, which caused him to step back. Mr Boothey then moved towards Mr Nolan and pushed him back twice but stumbled as he did so. Mr Nolan stepped forward and again punched Mr Boothey to the face. The blow caused him to fall backwards and hit his head on the pavement. He died two months later. In the immediate aftermath, while Mr Boothey lay motionless on the ground, Mr Nolan said that Mr Boothey deserved it and that he was not going to wait for the police. He then left the scene with his partner.

Ultimately, Mr Nolan was arrested by police after running through the carpark. He told them that Mr Boothey had "got in [his] face" and was drunk. He said that he acted because he felt Mr Boothey was going to swing at him. Mr Nolan had a serious criminal record, including for violence. He had a tragic childhood, which, the judge found, appreciably reduced his moral culpability. He also suffered serious interlinked psychological, psychiatric and cognitive difficulties, including an IQ of only 61.

R v Rivett [2020] VSC 563

In the second half of last year, I imposed upon Mr Rivett a sentence of nine years' imprisonment with a non-parole period of six years upon a plea of guilty to manslaughter in the following circumstances.

Mr Rivett, in a fit of drunken pique, punched Lamin Masterton-Bojang with two left-right combinations to the head. The victim, who had his hands up in a defensive manner at the time, fell backwards, striking the back of his head on the roadway. He did not move a muscle thereafter. After dragging his motionless victim off the road to avoid any risk of further harm from passing vehicles, Mr Rivett left him there alone, unconscious, under some shrubs. Eventually (about an hour later), Mr Rivett came to his senses and called emergency services from a nearby public payphone, albeit he did not give his name and left before the ambulance arrived. Later that evening, after being urged to do so by his former partner, Mr Rivett handed himself in to police, to whom he admitted his involvement in the assault. The victim died some days later in hospital.

Mr Rivett, aged 55, was homeless and had an extensive criminal history of assaults. On the other hand, his co-operation with the authorities, early plea of guilty and remorse, his prospects of rehabilitation (which were guarded to reasonable), and his reduced moral culpability resulting for his deprived early life, all pulled in the other direction.

[1] For the younger reader, Fester Fumble (played by Ernie Bourne) was a cowardly villain in the children's television programme Adventure Island, which ran from 1967 to 1976 on the ABC. (The show was hosted in later years by the delightful Sue Donovan, later McIntosh, who was married to actor Terry Donovan; and their son is the actor-singer Jason Donovan.)

[2] The imposition of sentence has been delayed from 16 February 2021 until today because of restrictions resulting from the most recent lockdown in Victoria in the wake of the COVID-19 pandemic. The prosecutor advised that Mr Blake's family wished to be present in the Court for sentence (as opposed to viewing the matter virtually), the former of which could not occur until the lockdown was lifted. Mr Lucas did not oppose adjourning sentence to accommodate that wish, which was decent of him.

[3] See ss 9A and 9C of the Sentencing Act 1991 (Vic).

[4] The statements of others present on the night supported this view (see the Depositions at pp 109[10], 125, 129[14], 140, 164, 176, 177, 179, 196[8] & 209[10]).

[5] See the statements of others present on the night (Depositions at pp 91, 102, 129[16], 141, 144[4], 152, 166[2] & 238) and the transcript of the s 198B examinations (see T 16.30-31 & 38.2-3). At 8:15 a.m. on the morning of 24 November 2019 (i.e. about six-and-a-half hours after the incident), Mr Lucas's blood-alcohol reading on a preliminary breath test conducted at Ballarat Police Station was 0.000 g/100 mL (see the Depositions at p 273[11]-[12]).

[6] That decision was made, it was said, in accordance with Ambulance Victoria Clinical Practice Guidelines following at least 30 minutes of resuscitation without return of a pulse and given consideration of evidence of (what was perceived to be) a significant head injury.

[7] Dr Young's report at p 2; Depositions at p 60.1.

[8] Dr Young's report at pp 3, 6, 7 & 9; Depositions at pp 60.2, 60.5, 60.6 & 60.8.

[9] This aspect of Dr Young's report reflected the brain examination conducted by Dr Linda Isles on 28 November 2019. See Depositions at p 60.17.

[10] Dr Young's report at p 3; Depositions p 60.2.

[11] Dr Young's report at p 3; Depositions p 60.2.

[12] Dr Young's report at pp 3-4; Depositions pp 60.2-60.3.

[13] This hearing was conducted pursuant to s 198B of the Criminal Procedure Act 2008 (Vic).

[14] There is no dispute that the Director has given notice, in the appropriate form, of an intention to seek the imposition of a sentence in accordance with s 9C, pursuant to ss 9A(2) and 9C(1) of the Sentencing Act 1991 (Vic).

[15] As indicated earlier, in recent times, the notion of dangerousness, for the purposes of the common law concept of manslaughter by unlawful and dangerous act, has been modified by s 4A of the Crimes Act 1958 (Vic), but only when particular circumstances prescribed within the provision are established. As we shall see, those circumstances apply in this case.

[16] See s 5 of the Crimes Act 1958 (Vic). The maximum penalty has since increased to imprisonment for 25 years, but that is inapplicable to Mr Lucas's case.

[17] See, for example, Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 332-334 (per Mason CJ, Toohey, Gaudron and McHugh JJ).

[18] Further statutory notes have been omitted (as they are not relevant to this matter).

[19] That said, Mr Blake cannot have experienced any pain as a result of that laceration, because he was unconscious when it was caused, and he did not recover consciousness thereafter.

[20] The argument would be that, even if one of the punches did not satisfy the criterion in paragraph (a), it is sufficient that one of them did, because s 4A(3) provides that "it is irrelevant that the single punch [i.e. the one that met the criterion] is one of a series of punches or strikes". See below.

[21] The argument would be that, in so far as it is possible to do so, each of the four criteria in paragraphs (a) to (d) is to be understood as importing the terms of s 4A(3). Again, see below.

[22] Mr Tovey referred, in particular, to DPP v Zheng [2013] VSCA 304 (per Maxwell P and Priest JA), especially at [44], where Maxwell P referred to Myers v The Queen [1997] HCA 43; (1997) 147 ALR 440.

[23] Esmaili v The Queen [2020] VSCA 63 at [51]- [57] (per Priest and Kyrou JJA). (I was in dissent on the construction point at issue on that appeal, but agreed in the result (at [64]-[97]).)

[24] See Explanatory Memorandum, Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Bill 2014; Attorney-General's Second Reading Speech, Hansard, Legislative Assembly, 20 August 2014, at pp 2823-2824.

[25] As both Mr Tovey and Mr Lewis submitted, in that respect, s 9C(3)(d) is unlike s 322T of the Crimes Act 1958 (Vic), which deals with the qualification to reliance on intoxication in relation to certain defences depending upon whether the defence incorporates a reasonable belief or a reasonable response, and with the prohibition of reliance on intoxication where it was self-induced.

[26] Second Reading Speech of the Attorney-General Mr Robert Clark, Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Bill 2014, Hansard, Legislative Assembly, 20 August 2014, at p 2824.

[27] Macquarie Dictionary, 7th edn, 2017.

[28] Explanatory Memorandum, Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Bill 2014, p 10 (my emphasis).

[29] That said, in the Macquarie Dictionary, 7th edn 2017, "king hit" (the noun) is defined in this way: "1. A savage blow, usually to the head and often delivered without warning, which fells the opponent. 2. Colloq. Any sudden, serious misfortune"; and "king-hit" (the verb) is defined in this way: "Colloq. to punch forcibly and without warning; coward's punch: *Like something ... had loomed up out of nowhere and king-hit him. - DAVID MALOUF, 1990".

[30] DPP v Esmaili [2019] VSC 218 (Hollingworth J). See also Esmaili v The Queen [2020] VSCA 63 (Priest and Kyrou JJA and Croucher AJA).

[32] While the matter was adjourned from 10 December 2020 to 11 January 2021 in part for the purpose of obtaining an expert report that might go to whether or not a "special reason" existed, within the meaning of s 10A of the Sentencing Act 1991 (Vic), so as to deny what otherwise might be the operation of the so-called coward's punch provisions in s 9C, in the end, while a report was obtained from Mr Staios concerning Mr Lucas's cognitive skills and related matters, and viva voce evidence was led from the same witness as well, Mr Tovey ultimately made no submission that s 10A was engaged. Lest there be any confusion about the matter, I should add that nothing I saw in Mr Staios's evidence established "impaired mental functioning that [was] causally linked to the commission of the offence and substantially and materially reduce[d] [Mr Lucas's] culpability" or any other element of s 10A.

[33] These thoughts echo the words attributed to the late Rose Fitzgerald Kennedy: "It is sometimes said that 'time heals all wounds'. I do not agree. The wounds remain. In time, the mind, protecting its sanity, covers them with scar tissue and the pain lessens. But it is never gone". Mrs Kennedy had an extraordinary life, filled with great joy and privilege, but marred by horrible personal tragedy, including the murders of two of her adult sons less than five years apart. Despite this, she lived to the remarkable age of 104 (22 July 1890 to 22 January 1995).

[34] While Mr Tovey frankly disclosed Mr Lucas's prior appearances as a child, Mr Lewis explained that those matters were not put before the Court as prior appearances because they were Children's Court matters of more than ten years ago.

[35] See, for example, DPP v Bourke [2020] VSC 130 at [32] (per Jane Dixon J); R v Nolan [2020] VSC 416 at [39] (per Taylor J).

[36] Bugmy v The Queen (2013) 249 CLR 571 at 594-595[43]-[44].

[37] Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 224, April 2019, pp 3-5.

[38] Vincec v The Queen [2018] VSCA 18 (Weinberg JA).

[39] Lee v The Queen [2018] VSCA 343 (Ferguson CJ, Priest and Beach JJA).

[40] DPP v Esmaili [2019] VSC 218 (Hollingworth J); Esmaili v The Queen [2020] VSCA 63 (Priest and Kyrou JJA and Croucher AJA)).

[41] R v Nolan [2020] VSC 416 (Taylor J).

[42] R v Rivett [2020] VSC 563 (Croucher J).