R v McLachlan [2000] VSC 564

11. On the evening of 21 June 1996, you arrived at Unit 4, 271 Canterbury Road, Bayswater North. The tenant of that unit was a newly found friend of yours, Tracy Marshall. Prior to your arrival you had been drinking at the Savoy Tavern in the City. You described yourself as drunk, although none of those at the flat gave evidence of observing you to be intoxicated.

14. Already at the unit were Tracy Marshall, a friend of hers , Emma Stephens, and the deceased, Derek Jones. About 7.20 p.m., you were joined by Kristen Ogilvie, who was a friend of Tracy Marshall. Marshall, Stephens and Jones had earlier obtained some whisky and coke which they were consuming. You joined them in this activity. There is a considerable discrepancy between the evidence of the two major Crown witnesses, Emma Stephens and Kristen Ogilvie, as to the events leading up to the death of Derek Jones. However, it is clear that a level of antagonism developed between you and Mr Jones, who was obviously affected by alcohol.

17. According to Emma Stephens, the deceased initially was boasting that he was "a hitman" and would like to kill a man named Andy. Apparently this was a reference to an Andy Jones, a person known to both Ms Marshall and yourself. At one stage in the evening, Tracy Marshall had "mouthed" to you: "That's the Derek that wants to kill Andy." Ms Stephens spoke of both you and the deceased "big noting", with the deceased using "smart arse" language towards you. It was Ms Stephens' evidence that you were being asked by the deceased if you knew particular people, and you were dismissive of them. Towards the end of the conversation, you referred to the deceased as "a maggot" and "a child tamperer". On Ms Ogilvie's version, the expressions were "a maggot" and "a dog". She described you grabbing the deceased on the arm and hitting him. The deceased's response was: "I thought we were mates, I thought we got along."

20. The account of Ms Stephens was of Mr Jones responding to your taunts by saying: "I'll fix you up" and "Now we'll see who's who." He then went to use the telephone and, after reporting that it was not operating, resumed his seat in the loungeroom of the unit. You then asked Tracy Marshall: "Can I ask him now? I can't wait for Andy." You then walked over to where Derek Jones was sitting and asked him if he knew Andy. On receiving the response "No", you said: "Wrong answer cunt" and punched the deceased, who fell to the floor. The question was repeated, with the same negative response. A kick to the head followed, which rendered the deceased senseless. On Ms Stephens' version, the deceased was then dragged from the loungeroom onto the front porch and, as the evening progressed, while helpless on the ground, he was subjected to further assaults, culminating with you bashing Mr Jones' head hard into the concrete driveway about four times while saying: "Wake up you maggot."

23. Ms Ogilvie's version was somewhat different. Following the verbal exchange in which you called the deceased a maggot and a dog, the witness had you saying to Derek Jones: "If you are not careful, you will end up dead on the front lawn." Shortly thereafter, the coffee table in the loungeroom was overturned and she observed the deceased on his back in the hallway, with you standing over him, holding him and saying: "Do you know Andy, do you know Andy?" The deceased was replying: "I don't know him." At some stage Mr Jones managed to regain his feet, and Ms Ogilvie observed you holding him in a headlock from which he was attempting to extricate himself. Events then spilled out into the front area of the house.

26. Ms Ogilvie deposed to you throwing the deceased onto the ground and kicking and punching him both in the ribs and the head. You grabbed his head by the hair and hit him on the concrete with considerable force on more than two occasions. You were exhorting him to fight back with the words: "Come on, fight back, you bastard", but it was obvious he was unable to do so. At this point you returned inside the unit.

29. Your own, admittedly limited, account to the police was of having an argument with Mr Jones because he did not like, or hated, or wanted to get, your friend Andy Jones. You described ending up out the front of the unit and the deceased being rendered semi-conscious. Although you claimed he landed some blows on you, on your own version, these were superficial. You described the deceased as "a dope with his arms". The evidence of Ms Ogilvie is that at no stage did she see the deceased land a blow upon you. I accept that evidence.

32. It is clear from the evidentiary material to which I have adverted that Ms Stephens' account is the most damning. On her version, you rendered the deceased senseless in the first moments of your assault upon him and, thereafter, continued to assault him while he lay helpless on the ground. Ms Ogilvie's version is of the initial events leading to the bashing of Mr Jones' head on the concrete occurring in a continuous sequence. Although I am not obliged to accept a view of the facts favourable to you, I prefer the version of Ms Ogilvie. This is because she was an independent and sober witness. Ms Stephens, on the other hand, suffered from the disabilities of the ingestion of alcohol, together with eight Normison tablets, and played a subsequent role in proceedings which rendered her an accomplice.

35. Although there is a disparity in the sequence of events described by the two young women, they both deposed to what I might describe as the "PIN number" incident. The deceased's wallet, having been taken from him and a credit card found in it, you, at the behest of Tracy Marshall, endeavoured to obtain the deceased's PIN number. You failed in this endeavour and, returning inside, announced that you had punched Derek again and that he had passed out. That was Ms Stephens' account. According to Ms Ogilvie, she heard you say: "What's the PIN number, maggot?" You returned and stated: "I only managed to get the first two numbers." You told the others that you had kicked and punched the deceased.

38. At one point in the evening, Tracy Marshall (who was also convicted of manslaughter) went outside and administered a number of kicks to the deceased's body. It is possible that these blows caused the rupture to the deceased's liver which, along with the fractured skull occasioned by your activity, constituted the substantial and significant causes of death.

41. I do not for one moment believe that the evidence revealed the full picture of what occurred on this evening. For example, I regard it as highly likely that the deceased was assaulted with a piece of pottery. Some fragments of pottery bearing the deceased's blood were found in the garbage bin and other fragments were on the lawn outside the unit. However, none of this could be linked to you, and I put it to one side for the purpose of sentencing.

44. As the evening progressed, you and Ms Marshall checked on the condition of the deceased on several occasions. You sought for a pulse and turned him on his side to assist his breathing.

47. In order that passers-by would not see Mr Jones lying at the front of the unit, you and Ms Marshall decided that he should be moved into the garage. You both then smoked some marijuana, before falling asleep on the loungeroom couch. Ms Stephens also slept the night, whilst Ms Ogilvie departed the premises.

50. During the next morning, you discovered that Mr Jones had died in the garage. Thereafter, you made efforts to dispose of the body, which was ultimately placed in a stolen Commodore vehicle and left in a carpark adjacent to the Croydon railway station.

53. You told the police that you did not expect death to result from your actions. The jury verdict is consistent with that assertion. Nonetheless, you subjected Derek Jones, a man who was under the influence and obviously incapable of fighting back, to a vicious assault. On the evidence, I regard any provocation offered by the deceased as minimal and, whatever drunken boasting the deceased may have indulged in that evening, he never constituted any danger to you. You made no attempt to obtain assistance for him and your activities after the assault demonstrate minimal concern for his well-being. Rather than obtain any medical assistance, you chose to hide the victim from sight in the uncongenial surroundings of the garage. Your callous disregard of his physical state may to some extent be explained by the erosion of your judgment and perception through alcohol consumption and the subsequent use of marijuana.

56. Your reaction to what the deceased had to say on this evening may be understood , at least partially, in the assessments of the consultant psychiatrists, Dr Douglas Bell and Dr Ruth Vine. In May 1996 Dr Bell described you as:

"A man with a rather paranoid disposition who adopts a generally mistrustful view of his social world with a strong propensity to misinterpret the actions of others as being malevolently intended towards him. He had been involved in numerous assaults within the prison system and these had often occurred on account of his belief that he needed to act vigorously to defend himself against people he believed to be his persecutors. It is likely that this tendency would be aggravated in circumstances where Mr McLachlan had ready access to alcohol."

60. Dr Vine also refers to your prominent paranoid personality traits. She remarked in relation to this offence:

"It is of significance that he had been consuming alcohol during that day, that he had only been out of gaol for some three days, but in that three days he had not been taking any psychotropic medication. Both of these factors may have contributed to a greater level of impulsivity and disinhibition. Having said that, there is no suggestion that Mr McLachlan was unaware of his actions at that time, nor unaware of the risks associated with those actions."

64. Finally, in a psychological report dated 26 February 1998 (as well as in his evidence at an earlier plea) Mr Ian Joblin, a forensic psychologist, expressed the view that, while you do not have an antisocial personality disorder, you have a paranoid disposition.

67. You do not currently suffer from any describable psychotic disorder such as schizophrenia, although, according to Dr Vine, you suffered a significant paranoid psychosis following an episode in the Prison Management Unit in 1994. You have apparently suffered from epilepsy for many years.

70. On a number of occasions I have remarked that the courts have a duty , through the imposition of appropriate sentences, to uphold the sanctity of human life, and to deter persons who, by resorting to violence, may destroy such life. The courts must be seen to condemn violence as a technique for solving perceived problems.

73. Since the offence of manslaughter occurs in many and varied circumstances, and is committed by a wide variety of individuals, it is of course necessary to have regard to individual circumstances and factors personal to each offender in determining the appropriate sentence. I have mentioned some of those factors in referring to your role in this senseless killing. In a moment I will discuss factors personal to you which are also relevant to the sentence to be imposed. Before doing so, however, I want to say something about the deceased, Derek Jones.

76. It is clear from the Victim Impact Statements of Derek's family that he was greatly loved by them. To his parents, Robert and Dawn Jones, Derek was a gentle, loving and caring person. Both speak of their loss of interest in life and the draining away of the joy of living occasioned by their son's death. To his daughter Alexandra, he was a loving father. His brother Gregory, who has suffered post-traumatic stress disorder as a result of these events, writes of the loss of a good mate and fishing partner, whilst brother, Ralph (who speaks on behalf of his family, Gillian, Sam, Scott and Sheridan) refers eloquently to the loss of a link in the family chain. Another brother, Tony, describes the deleterious effect on his health of the death of his best mate and the increased anguish experienced at such times as Christmas and birthdays. Derek Jones' death, and the manner in which it occurred, is something from which the Jones family will never fully recover. The years that it has taken to resolve this case must inevitably have resulted in additional trauma.

79. John McLachlan, you are 33 years of age, having been born at Werribee on 27 January 1967. You have one older and one younger sister. Your early childhood was one of depravation. You never met your father and you spent many hours wandering the streets while your mother was drinking in hotels. Your existence was pervaded by poverty.

82. You attended Werribee Primary School and later Werribee Technical School. However, you found it difficult to cope with school life. Periods of truancy, fighting and petty thefts resulted in you being admitted to Baltara Boys Home at the age of 12, as being uncontrollable. Although your mother cared about her children, she lacked the capacity to provide you with adequate guidance. You also lacked a father figure. Fighting in the schoolyard and street became one of your survival mechanisms. When your mother entered a de facto relationship, violence eventually erupted, in which you were also engulfed.

85. You left school at about 14 years of age, obtaining work as a casual labourer at Gilbertson's Abattoirs in Altona. A semi-permanent job at Hyde Tanning Shed, Laverton followed. You remained there for about three years.

88. Socially, your companions were initially older men, with whom you passed the time drinking in hotels. Minor assaults occurred during this time and, up until you were 17, you had spent some two months at Turana. You had commenced drinking at the age of 13 and your subsequent history features the abuse of alcohol and prescription drugs, as well as the use of marijuana.

91. It was also when you were about 17 that you formed an association with a girl named Leanne, resulting in the birth of a child, Tamara. Her ill health, due to a tumour behind the eye, placed pressure on the relationship, which fell apart.

94. Again, at 17, your mother developed a friendship with a police officer. They have since married. Conflict soon developed between you and your mother's new companion, due in no little part to your drinking. After an altercation, for which you were later convicted of assault, you left home and went to live with Leanne in Housing Commission flats in North Melbourne. The material indicates that you then went to Warrnambool, where you worked as a seasonal fruit picker.

97. Thereafter you commenced to accumulate convictions. Between October 1984 and June 1996 you were convicted of 57 offences from 13 court appearances. These included burglary, theft, handling stolen goods and using and possessing drugs of dependence. Of greater concern are your adult convictions relating to violence. These commenced in October 1984, when you were found guilty of two charges of assaulting police. In February 1986 you were convicted of two charges of assault occasioning actual bodily harm and received a sentence of imprisonment. In September 1988 you committed the offences of intentionally cause injury and assault. The offences apparently occurred after you had been drinking. You were sentenced to six months for the former and two months on the latter offence, as part of a total effective sentence of 18 months' imprisonment with a 12 months minimum. That sentence was wholly suspended on condition that you attended Cresswell Rehabilitation Centre. You failed to keep that condition and the original sentence was reinstated. About this time you were residing in Warrnambool with a young woman named Gina. On occasions you would visit Melbourne to see your daughter, Tamara .

100. In February 1990 you received two months' imprisonment on two counts of assaulting police. In March 1993 you were convicted of aggravated burglary and reckless conduct endangering persons, for which you received a total effective sentence of four years with a minimum of three years before you were eligible for parole. The genesis of that incident was said to be threats uttered by a man named Wickham towards you and your family, in response to which you went to Wickham's house armed with a gun. I have been provided with no further details of that matter, but the County Court Judge who sentenced you obviously regarded it seriously.

103. According to material placed before the Court in an earlier plea, much of the period between February 1990 and January 1996 was spent in custody. On your release in January 1996, you met a young woman named Debbie, who was a drug user, and you were reintroduced to amphetamines, Rohypnol and Rivotril. In February 1996, when you no longer had money to purchase drugs, you committed a series of offences, which included theft of a motor car. At this time you were still subject to parole for the March 1993 offences. According to the record of prior convictions, you received a Community Based Order on 18 June 1996, although this Court was also informed that you were released on bail by a Magistrate on that date. Whatever the situation, you were freed from custody. By 21 June, some three days later, you had fatally assaulted Mr Jones. The fact that, during this period, you were unable to obtain the psychotropic medication you had been receiving in Pentridge, and chose to self-medicate with alcohol, may, as Dr Vine opines, partially explain the violence of your reaction on this occasion. It does not, however, excuse it.

106. Your history up to the commission of this offence, both inside and outside the prison system, marks you as a person with a propensity for violence. Accordingly, the protection of the community is a factor to which I must give weight in the sentence imposed. It was, however, urged on your behalf that you were making a considerable effort to rehabilitate yourself. Reports from Ms Denise Reid, a prison psychologist at Barwon Prison, dated May and December 2000, recount your diligent attendance at courses addressing offending behaviour and personality development. Those have included Assertiveness, Anger Management and Alternatives to Violence programs. Ms Reid expresses the view that if you maintain your commitment and utilise the skills taught to resolve personal and lifestyle problems, you should be at minimal risk of reoffending.

109. A psychological report dated 10 December 2000 from a forensic psychologist, Ms Elizabeth Warren, also notes a number of positive changes in your life. Beneficial contact has resumed with your daughter, Tamara, who is now 14 years old. Similarly, you have lifted a self-imposed ban on your family visiting you and you now see both your mother and one of your sisters. You also have the ongoing support of a good friend named Jan, who has taken an interest in your future welfare. After 14 months of self-imposed isolation following your initial conviction for this offence, you have now apparently returned to the mainstream prison population.

112. Ms Warren is of the view that, despite the many years spent in institutions, you are not institutionalised. You are now handling prison situations which would previously have led to violent confrontations with a new maturity. Furthermore, IQ testing has revealed that you are a person of high intellect with a capacity for a wide variety of educational achievement.

115. Letters from persons who dealt with you at Port Phillip Prison up to February 1998 praised your contribution to the operation of the prison gymnasium, including (at that time) the devising of weight training and fitness programs for fellow prisoners and staff.

118. All these are factors which could enable you to rehabilitate yourself if you are sufficiently motivated to do so.

121. There are several other matters which I must take into account in your favour. Firstly, there is your offer to plead guilty to manslaughter made at an early stage of proceedings and repeated thereafter. Secondly, there is the element of remorse referred to in the report of Mr Joblin and accepted by Justice Teague in the earlier plea. The fact that you chose to put the Crown to its proof on the element of causation does not deprive you of the benefit of each of these matters.

124. Thirdly, regard must be had to the stress and trauma occasioned to you by the fact that this matter has been the subject of four trials and one appeal.

127. I take all those matters into account in your favour.

130. I need to mention two final aspects of your plea. It was argued that the present sentence should be governed by the principles of parity and that I should impose a sentence which was largely commensurate with that received by your co-offender, Tracy Marshall - namely, four years with a two year minimum. In my view, no such consideration exists. Ms Marshall was a much younger person who had fewer prior convictions (13 from five court appearances) and those convictions do not reveal a propensity for violence. Further, Ms Marshall did not initiate the violence on this occasion but participated in it at a later stage. I should add that she had also offered to plead guilty to manslaughter.

133. It was also submitted that Anderson case principles should be applied to lessen the weight to be accorded to the element of general deterrence in this case. (See for example R. v. Tsiaras [1996] VicRp 26; [1996] 1 V.R. 398.) It cannot be suggested that, at the time of the commission of this offence, you were suffering from any serious psychiatric illness and, accordingly, the relevant principles have no application.

136. Balancing as best I can the principles of sentencing enunciated in the Sentencing Act, including punishment, community protection, specific and general deterrence and rehabilitation, I have concluded that the appropriate sentence is that you be imprisoned for a period of nine years. I fix a minimum period of seven years before you become eligible for parole. Further, I declare that the period to be reckoned as already served under this sentence is 1,640 days, inclusive of today's date. I direct that there be noted in the records of the Court the fact that such declaration is made and its details.