R v McKeown [2004] VSC 205

8. Both the deceased and Suzanne Langdon were heroin addicts throughout the period of their relationship and, indeed, as is apparent from the evidence before the jury subsequently.

11. The evidence before the jury demonstrated that the relationship between Suzanne Langdon and the deceased was volatile indeed. You had known Suzanne Langdon for approximately 10 years. Shortly after the separation of Suzanne Langdon from the deceased in May of 2002 you commenced a relationship with her and commenced to live with her at her house in Amaroo Street, Chadstone.

14. On the morning of 16 July 2002 the deceased telephoned Suzanne Langdon seeking to have a discussion with her about maintenance and other matters. Suzanne Langdon agreed to meet the deceased at Richmond Railway Station for this purpose. Subsequently in the afternoon of that day, the deceased, by telephone, and in the course of a number of telephone calls, informed Suzanne Langdon that he intended to attend at her home in Amaroo Street. As I said, a series of phone calls took place between Suzanne Langdon and the deceased about this matter during which time Suzanne Langdon demanded that the deceased not attend at her home. She became increasingly agitated about the matter.

17. In the late afternoon you left work and attended at Suzanne Langdon's mother's house where Suzanne Langdon and her mother and others were present. Shortly thereafter Suzanne Langdon left her mother's house and walked to a nearby bottle shop to purchase alcohol. On her return walk a short time later, she walked past her house at 17 Amaroo Street and became suspicious that the deceased man was at her house.

20. She returned to her mother's home which was nearby and where you were then situated. She told you about her concerns that the deceased was at her house. Upon hearing this, you decided to drive to her home in company with her brother, John Langdon. You arrived there soon after 7 p.m. You parked your car in the driveway and entered the house and found no-one present. You then checked the backyard which was in darkness and likewise found no-one present.

23. You and John Langdon then returned to the front of the house in Amaroo Street and soon thereafter the sound of smashing glass was heard. It is apparent that at this time the deceased was present, but unseen, and that it was he who had caused the sound of smashing glass by smashing the headlights of your car.

26. It is apparent further that the deceased then entered the rear yard of the premises and, upon doing so, observed the next door neighbour, one Christopher Wright, near a wooden paling fence. The deceased went over to talk to Wright. Wright observed the deceased to be holding a stubbie of beer in one of his hands. You thereafter decided to re-enter the rear yard of the premises from a reserve at the rear of the premises. Upon doing so, you observed the deceased speaking to Wright over the side fence. You approached the deceased from behind and raised a tree branch measuring approximately 60 cm in length and 6 cm in diameter above your head and struck the deceased to the back of the head with considerable force.

29. It is unclear when you armed yourself with the tree branch but I accept that it was soon before the assault took place, as you told police. Wright observed you to strike the deceased several times to the head and upper body with the tree branch before he fell to the ground. He then observed you hit the deceased again with the branch two or three times. He screamed at you and told you to stop hitting him, upon which you threw the branch away. However, Wright then saw you on one knee punch the deceased to the head. Wright yelled at you to stop and said you would kill the deceased if you did not. You then jumped up from the deceased.

32. Mr Wright described your behaviour to the jury as frenzied, angry and out of control. He said that you said, "Fuck him, he smashed my lights, how am I supposed to get to work tomorrow?" soon after police were called by Suzanne Langdon's son, who in the meantime had attended the premises with her mother and Suzanne Langdon's mother. You did not leave the premises but waited for the police to attend.

35. Police arrived at 7.33 p.m. and the ambulance attended at 7.34 p.m. and some time thereafter the deceased was established as having died.

38. The evidence given before the jury by pathologist, Dr Lynch, was that the injuries sustained by the deceased consisted of multiple facial bruises, scalp lacerations and fractures of the skull with associated brain injury. He considered that there were a minimum of eight separate impacts comprising two to the right ear and cheek, one to the forehead, two to the left cheek, one to the left occipital region, one to the front of the neck, one to the left chest and one to the right chest.

41. There can be no doubt that the assault upon the deceased involved severe force with the tree branch.

44. Post-mortem examination revealed the deceased had a blood alcohol content of approximately .2 percent and had recently self-injected heroin and used cannabis.

47. You conducted your defence before the jury on the basis of provocation. Thus, there was never any argument but that your actions had resulted in the death of the deceased. However, you contended that his conduct was such as to provoke you to a point that you lost your self-control and that the acts which caused the death of the deceased were done during a period of loss of self-control.

50. I accept that the conduct of the deceased was such as to provoke you to lose some control of yourself. It is clear, however, that the jury concluded that the provocation of the deceased was not such that an ordinary person in your position would have reacted in the same way in which you did and go on to inflict such force upon the deceased that he died. Your response to the provocation offered to you by the deceased was, in the view of the jury, clearly well beyond that which was in any way justified by the insult of the deceased trespassing upon your partner's property and by the damage done to your motor vehicle by him.

53. I conclude, however, that the jury was satisfied beyond reasonable doubt that your intention was to cause really serious injury rather than to kill the deceased.

56. As has been pointed out by your counsel already, there are a number of mitigating factors. First, I accept that there is no suggestion in the evidence of any premeditation or planning to assault the deceased. I accept that you did not attend the address of your partner armed with any implement. Rather, you attended at the premises to secure the property and no doubt to remove the deceased from the house if you found him present there.

59. I accept that you genuinely cared for Suzanne Langdon and that you saw the conduct of the deceased as threatening to that relationship. I accept the submission made by your counsel that, by reason of your background, to which I will refer in more detail later, and by reason of the circumstances which were applicable to you at the time of your offence, you were particularly vulnerable to the provocation of the deceased.

62. You had at the time, and perhaps for the first time in your adult life, brought some stability to your life. You had some prospects, likewise, for the first time in your life, of living a normal life with employment and with a family environment. You had ceased to use drugs, save for an opiate substitute you were taking at the time upon prescription and you had obtained full-time employment as a welder's assistant.

65. The car which was damaged by the deceased had been provided to you by your brother and your family who had supported you in an attempt to rehabilitate you into the community. I accept by reason of what you said to Mr Wright at the time that it was important to you to have the car available to get you to work the next morning. I accept that your behaviour occurred as a consequence of a spontaneous outburst of anger which was unrestrained and, as the jury have found, excessive.

68. Your counsel, Mr Saunders, characterised your behaviour as "perhaps many years of frustration and anger and institutionalised behaviour erupting" when you saw the deceased threatening your new and relatively stable situation.

71. I consider there is considerable weight in this view of the circumstances of the offence.

74. Notwithstanding your plea upon your trial, I accept that you suffer remorse. It is true that there are falsehoods revealed by your record of interview. Those falsehoods in my view, however, reflect in a number of ways upon your intention to protect others from any involvement in your offence. For instance, you maintained to police that you attended at the premises alone and not in the company of John Langdon. However, in my view, the video-tape of the record of interview demonstrates that, although you clearly intended at the time of the assault to seriously injure the deceased, you did not have an intention to kill him.

77. You told police that "maybe" you went a little "overboard" but you did not intend to kill the deceased. You said, "I was mad and I wanted to get payback for me lights". You said in answer to the question of whether you had anything to say in answer to the charge as follows, "You, you know, it sounds like youse are making out I've gone around there to kill him or something, you know, and that - this wasn't me intentions, you know. I just don't know, you know, I didn't think this, my intentions were not to do this and I didn't think that I could do this, do you know what I mean? I didn't think, you know, like I feel really bad because now his, his kid hasn't got a dad, do you know what I mean? I mean, I could have lived with him having a bit of a few bruises and a few cuts, no worries, but, you know, like I feel so bad that this kid - you know, I've got two kids myself, mate. I don't know, I don't know, I'm very, very sorry that it's come like this but it wasn't me intentions but".

80. I have been told something of your personal history and your circumstances. You are now aged 39 years having been born on 4 March 1965. You have an extensive criminal history. The criminal history report produced before me demonstrates that you first appeared at the Oakleigh Children's Court on 21 October 1976 at which stage you were aged 11 years. Thereafter you appeared at the Children's Court, by my calculation, on some 16 occasions between 1976 and 1981.

83. As is apparent from the records, you were first sentenced to be detained in a Youth Training Centre at the age of 14. Throughout the 1980s you were convicted at various Magistrates' Courts of numerous charges of theft and other dishonesty offences and motor vehicle offences. You were convicted of robbery at the County Court at Melbourne on 30 November 1987 and sentenced to a term of 18 months with a minimum non-parole period of 9 months. You were convicted of being in possession of cannabis in November 1988 and subsequently between then and 1996 you were convicted of numerous charges of theft, stealing, using a drug of dependence and possession, cultivation of and trafficking in a drug of dependence. You were convicted of robbery at the County Court on 27 September 1996 and armed robbery on 9 May 1997.

86. The nature of some of the crimes which appear upon your record, in particular, the convictions for robbery and armed robbery, are such that they are particularly relevant to my task of sentencing you today. However, it is notable that the overwhelming number of your prior convictions are related to dishonesty offences and to offences involving the use of and the possession of drugs.

89. Your counsel, Mr Saunders, addressed me in relation to the offences which have a suggestion of violence about them. As stated by me, the first of those offences was a conviction for robbery at the County Court at Melbourne on 30 November 1987 which I was informed involved a demand of a wallet from a male with no violence. A conviction at the Magistrates' Court at Prahran on 9 November 1990 for reckless conduct endangering a person, I was informed involved the reckless driving of a stolen vehicle to escape police. A charge of assault in company on 12 September 1995, together with a charge of unlawful assault and using a drug of dependence, was adjourned on a good behaviour bond for a year. I am informed that the robbery of which you were convicted on 27 September 1996 at the County Court involved circumstances in which you went into a doctor's surgery in an attempt to obtain a prescription for Rohypnol and, as the doctor was not forthcoming with the prescription, you stole his wallet. The armed robbery of which you were convicted is said by your counsel to have involved a demand for a wallet with a pair of paper scissors as the weapon.

92. I accept that these matters are substantially related to your almost life-long addiction to drugs.

95. Evidence has been led on your behalf. I heard from Kate White who is an outreach worker for the "Bridging The Gap" program. She first met you in October 2001 at Dhurringile Prison in the weeks leading up to your release from that prison in October of that year. I observe in passing that the fact you were in Dhurringile Prison no doubt reflects a low prison classification dependent upon your good behaviour in prison.

98. Miss White said that at the time she met you, you had developed some real insight into what had led you to prison throughout all the many years of your adult life. She continued to keep in touch with you whilst you were on parole and she noted that you had made some dramatic and, for you, quite difficult changes in your life. You moved away from your peer group and were doing well on parole.

101. You had undertaken vocational training in prison and you were working full-time at what Miss White believed was the first full-time job held by you in your life. She said that you were "beside yourself" when you got your full-time job as it was a matter of great significance for you. Miss White was aware of the fact that you had formed a relationship with Miss Langdon and that both of you were addressing your histories of heroin use by engaging in an opioid substitution program by prescription.

104. You had during this period of parole re-established contact with your children from a previous relationship. From her viewpoint you were making remarkable progress at the time of the events which bring you before this court. Miss White gave evidence before me that you told her that it was the first time you had been released from gaol and were not "on the run" and that you were doing everything that you needed to do to effect changes in your life.

107. A report tendered before me was prepared by psychologist, Patrick Newton. It is a full and detailed report which contains considerable insight into your history. You are the younger of two children. In your early years your parents and their children lived with your grandparents. Your father was a heavy drinker and you had little meaningful relationship with him. By reason of your father's heavy drinking, your mother was required to work two jobs to support the family financially, with the result that the parent role in your life was fulfilled largely by your grandfather.

110. You engaged in truancy regularly from middle primary school. Your grandfather died when you were aged 13 and, as he had been the only stabilising influence during your early years, you were left largely to your own devices. You commenced heavy drinking and cannabis use at age 13 and from the age of 14 you have spent some of virtually every year in some form of institutional accommodation.

113. You informed Mr Newton that your longest period of liberty had been 18 months in the period 1992 to 1993. Although your schooling ceased upon being placed in YTC at age 14, you have nevertheless acquired basic literacy and numeracy skills.

116. In terms of your drug use you have had a long history of poly-substance abuse dating back to the age of 13. Mr Newton has concluded that you were physically and psychologically dependent upon both alcohol and cannabis from your early teens. At age 17 you commenced to use amphetamines as an additional drug and that was a drug you continued to use until age 25. Your only periods of abstinence during these years were during your regular times of imprisonment, although it should be observed that you were first introduced to heroin whilst in prison at the age of 25. Thereafter you developed a powerful heroin addiction which continued throughout your adult life until, indeed, your most recent term of imprisonment to which I have already referred.

119. However, whilst you were at Fulham Prison in late 2000, early 2001, you engaged in an intensive drug program which is provided for inmates of that prison. Upon release from prison you commenced a buprenorphine therapy and under that therapy you were able to maintain a drug free lifestyle in the community for the first time in more than 20 years. Mr Newton reports that you demonstrate a good level of insight into your drug use and that the positive effect of abstinence from heroin has acted as a motivator for continued abstinence.

"It is recognised that lengthy custodial disposition is highly likely in Mr McKeown's case. In this context it is clear that Mr McKeown will be suffering even more severe impacts of institutionalisation upon his release. In the light of these matters I consider that Mr McKeown would require extensive and intensive support if he is to have any prospect of making the transition of an institutional setting to independent life in the community. Such support would include at least the following components; extensive practical assistance for establishing himself in the community, including assistance with housing and employment, intensive ongoing drug monitoring, education and treatment, ongoing counselling and educational intervention to address the ongoing social alienation, poor self-esteem and dislocation which he experiences."

"The severity of Mr McKeown's problems, his disturbed personal history, his chronic substance abuse, the multiple relapses he has experienced, and his entrenched social problems, mitigates against flippant optimism. Nevertheless, this assessment has revealed a number of factors which suggest that there is cause for a guarded optimism with regard to his prognosis. Chief among these is the good progress which he had been making with regard to his drug use prior to these offences. As a result of his abstinence Mr McKeown was beginning to experience a range of positive outcomes in his life more generally and was showing a degree of adaptive living skills that had not been evident in his life before that time. Whilst it is manifest from subsequent events, including most notably the offence, that there was considerable progress still to be made, the steps he had taken to address his problems bode well for his capacity to benefit from similar intervention upon his eventual release".

131. However, as well as matters personal to you, such as the chances of your rehabilitation and such as the issue of special deterrence in your case, I must, among other things, also take into account the issue of general deterrence which is important in this case. Members of the community must understand that disputes cannot be settled by violence of any description but particularly of the nature inflicted by you upon your victim. Obviously, had the proper course been taken by you and the police called, your victim would have been appropriately dealt with and the dreadful consequences of you, in effect, taking the law into your own hands, would not have occurred and you would not be standing in that dock now.

134. Furthermore, sentences of this court in relation to homicide must reflect the principle that human life is sacrosanct. In all of the circumstances, there is no alternative but to sentence you to a lengthy term of imprisonment and I convict you and sentence you to 16 years' imprisonment.

137. However, as I have observed, and notwithstanding your extensive prior history of offending, there is reason to have some optimism about your capacity to rehabilitate yourself. If you remain drug free, you may well still have an opportunity to serve a useful life in the community. I note advice given to me this morning that you have already been involved in the schools program provided by Barwon Prison to the local community. I have little doubt that school children could be much benefited by your contribution as to the effect that heavy drug abuse has had upon your life.

140. In this regard, and taking into account the opinions of Mr Newton and the evidence of Miss White, both of which I accept as being applicable to your case and, as I say, notwithstanding your prior history of offending, it is appropriate to fix a non-parole period which reflects an opportunity for you to have a considerable period of appropriate supervision and assistance during any period of parole should the Adult Parole Board consider it appropriate to grant you parole in due course. I direct that you not be eligible for parole until you have served 12 years' imprisonment.

143. I declare pursuant to s.18(1) of the Sentencing Act 1991 that the time you have been held in custody in relation to these proceedings is 639 days and I direct that such time be entered in the records of the court.