R v Osip [2000] VSC 225

Supreme Court of Victoria|2000-05-26|Before: COLDREY, J.

Robert John Osip, you have been found guilty by a jury of the manslaughter of Gary Francis Paterson at Warburton on 19 February 1999. It is necessary to briefly outline the circumstances surrounding the commission of this offence since they are relevant to the sentence I must impose upon you.

On 19 February last year, at about 5.30 p.m., you and a companion, Brian Davey, travelled in your Mazda station wagon to Warburton East. You intended to stalk the Sambar deer which inhabited the State forest. The average adult Sambar deer would stand 50 inches at the shoulder and could be likened to a cow or pony in size. They range in colour from ginger through to grey or even black. The State forest in this area is available for a range of recreational activities, including bush walking, four wheel drive driving, bike riding and picnicking. It is also legally permissible to hunt Sambar deer throughout the year.

You parked your vehicle at a point where the Warburton-Woods Point Road intersected with a forestry road called McDonald Track. You both commenced walking up the track carrying your weapons and ammunition. Mr Davey had a .303 rifle and you had a Springfield service rifle which had been re-stocked and fitted with a .270 Winchester calibre Whitworth barrel. The .270 Winchester cartridge used in that weapon leaves the muzzle at a velocity of 3060 feet per second and the firearm has a range of over 3,000 metres. In short, this was a powerful weapon designed to kill medium to large game.

You had obtained a firearms licence following the successful completion of a firearms safety examination on 8 December 1997.

You had visited the McDonald Track on 30 to 40 occasions over about a year and would normally spend about five or six hours walking up gullies and along ridges and animal tracks. However, it is a difficult task to stalk and kill a Sambar deer, and, in that time, you had not shot one.

As you were walking down McDonald Track on this afternoon, you heard a noise coming from within an area of trees and scrub that sloped away from the McDonald Track to your left. You said to Mr Davey, "Did you hear that?" he did not respond but kept on walking while you went over to the side of the track to investigate. At this point you had travelled only about 180 metres from the main road.

Mr Davey regarded what he described as "the hunting zone" as commencing a further kilometre up McDonald Track. You told this court you disagreed with Mr Davey's view. However, during 1998, when you had been engaging in target practice in this same area, a local resident, Mr Brian Rolls, who lived nearby on Brahams Road, intercepted both you and Mr Davey and expressed the view that shooting in this area, so close to houses, was not a good idea. Although you claimed to have heard only some of that conversation, you agreed that you were aware, thereafter, that a number of people lived in the area.

In your evidence you stated that you were about to continue on up the track when you again heard the noise. At the time of first hearing the noises, you loaded five rounds into the magazine of your rifle and left the bolt open. You had the sixth round in your hand when you stepped to the edge of the track. You told the jury that once you identified the target, you loaded this round and cocked the rifle. You claimed to have observed the shape of the lower neck and upper shoulders of a deer amongst the trees. It was a very dark brown or almost black colour. You raised your rifle to your shoulder, sighted it to the target and pulled the trigger. You told the jury that you hit the target at which you were aiming. Tragically, it was not a deer but the deceased, Gary Paterson. He was wearing a red and white check jacket, but you did not see this at all. Mr Paterson, who was 183 centimetres tall and weighed 72 kilograms, was out walking his dog. It would appear that he had taken a short-cut up the side of the foliage covered slope. He was approximately 10 metres from you when he was hit. You were 182 metres from the Woods Point-Warburton Road.

After you had fired the shot you heard the sound of something heavy falling on to the ground. You heard someone say , "Oh, shit," or, "I've been shot," and you heard groaning. The bullet had struck Mr Paterson towards the back of the right shoulder and travelled into his torso, damaging the shoulder blade, some ribs, the right lung and the liver. The track of the projectile through the lung had torn blood vessels, which had bled profusely. The ultimate cause of death was blood loss from damage to the lung.

You called out to Brian Davey, who by now was about 40 metres ahead of you on the track. You ran towards him and gave him your rifle. You then ran down a track which led to the base of the bushy embankment. Looking up the slope, you observed Mr Paterson, face down with his head pointing down the slope. You ran up the hill, checked his pulse and breathing and turned his body over and around. Both you and Mr Davey tried to lift Mr Paterson up the hill, but he was too heavy to carry in the dense terrain. You went quickly to your vehicle and obtained a rope. This was placed under Mr Paterson's arms and around his chest and you managed to haul him up to the level of McDonald Track. You then drove your vehicle up McDonald Track and placed Mr Paterson in the back of it. Just prior to this occurring the deceased's pulse had disappeared. You hit him in the chest and a faint pulse was restored.

Mr Davey gave you directions to Warburton Hospital and you drove there as quickly as possible. You dragged Mr Paterson into the hospital foyer, having first called for help. A nurse administered CPR, but ultimately, despite your efforts, Mr Paterson was pronounced dead at about 6 p.m. By this stage you were in an extremely distressed state. You co-operated with investigating police, indicating to them the location of the incident. Next day you went with them to McDonald Track and pointed out the positions of the various parties that evening.

On the Friday evening, while at the Warburton Hospital, you spoke with several police officers and made a statement. Sergeant Anthony Van Gorp records you in summary note form as saying, "We were walking through the bush, heard noises and I shot in the direction unaware anyone else in the vicinity." .

Initially you told Senior Constable Hillary Baker, "Well, I loaded all my gear to take it in my backpack and then got my gun and walked through the scrub for about 600 to 700 metres into the track. I heard a noise like a deer. I saw a shape and put my gun up, identified it and pulled the trigger. Then I heard a groan sound like, 'Oh, shit,' and I realised that I had hit someone." .

Later in a signed statement you said, "I wandered about 600 or 700 metres up the track and I heard a noise like a large animal pushing its way through the scrub. I walked to the edge of the track and looked down into the bush but was unable to see anything. This area is where there is a lot of deer. I stopped and listened and I heard the noise again. I looked in the direction of the noise and saw movement in the trees and I put my gun up to my shoulder and pulled the trigger. I heard what sounded like something heavy falling over and groaning." .

Although you were still in a state of shock and disbelief at the time, it is, nonetheless, significant that you did not specifically mention seeing the lower neck and upper shoulders of a deer. In my view, your evidence to that effect during the trial was a reconstruction or rationalization of events. I am prepared to accept that you saw an area of colour amongst the foliage, but at no time did you adequately identify it as a Sambar deer. It may well be that, in your eagerness to earn the acknowledged prestige of bagging this type of deer, you temporarily abandoned the basic safety provisions.

The Firearms Safety code lists eight basic safety rules for persons using firearms. A vital rule is No. 4, a portion of which is in these terms:

"IDENTIFY YOUR TARGET AND WHAT IS BEHIND IT Make sure of your target before firing. It is not good enough to just think that what you see is your target. REMEMBER: Do not fire at movement only. Do not fire at colour only. Do not fire at sound only. Do not fire at shape only. Your target must be positively identified before firing; if in doubt, DON'T SHOOT."

Your actions on this day breached that code. Not only that, you fired in an area near a main road, and an area in the general vicinity of residential property. You had previously been cautioned by Mr Rolls about the inadvisability of shooting in this area - advice apparently heeded by your companion, Brian Davey, but not yourself. Although you had seen only one four wheel drive vehicle, and your companion, one deer stalker on your previous visits, you should have been alert to the possibility of persons being in the area, at least in the vicinity of the main road.

The jury verdict is a finding by independent and impartial members of the community that your conduct in firing the rifle in these circumstances, involved such a great falling short of the standard of care which a reasonable person would have exercised, and involved such a high risk that death or serious injury would follow, that criminal punishment was merited.

Manslaughter, involving as it does the loss of human life, is a serious offence. The community is understandably concerned that persons who venture into public recreational areas of bushland armed with high powered rifles, strictly observe safety precautions.

The courts must pass sentences which deter those who may be minded to discharge lethal weapons in disregard of those standards. This is not only in the interests of the general public but also important if sporting shooters are to continue to have access to our public spaces.

Whilst the courts, by the sentences they impose, must uphold the value of human life, it should also be said that the offence of manslaughter occurs in many and varied circumstances and is committed by a wide variety of individuals. These factors must be taken into account in determining the appropriate sentence in each case. Consequently, the penalty for this offence varies widely.

In the course of his plea on your behalf, your counsel, Mr Gillespie-Jones, mentioned a number of matters which are personal to you and which are relevant to any sentence to be imposed. However, before mentioning these matters, I wish to say something about the deceased man.

Gary Paterson was only 20 years old when he died. Victim impact statements prepared by his parents, Susan and David Paterson, his twin brother, Jamie, his nanna, Judith Jacobsen, his aunt, Judy Stevenson, and a girlfriend, Tracey Bowden, all contain heartfelt expressions of their grief and sense of loss at his death. Mr and Mrs Paterson have been severely traumatised by these events and their aftermath. Clearly they had a loving and positive relationship with their son. Gary shared his mother's interest in horticulture and permaculture and, together with his father, worked on a truck. Jamie has lost a best friend who was always there for him. The tragic and untimely death of Gary Paterson is something from which his relatives and close friends will never fully recover.

Robert Osip, you are 21 years of age, having been born on 27 August 1978. You were 20 at the time of this offence. You are the eldest of four brothers and it is clear to me that you are a member of a closely knit and supportive family. Your primary education commenced at St Patrick's, Lilydale, and you commenced your secondary education at Mooroolbark Technical College. Ultimately that institution amalgamated with Pembroke Secondary College where you completed years 10 to 12. Thereafter you commenced an apprenticeship with T & J Building Constructions. You are currently in the fourth year of that apprenticeship. You are due to complete it in two months and at that time you will be a qualified carpenter. The evidence of your employer, Mr Thomas Steiniger, was that you were a good employee, being punctual, trustworthy and reliable. You work long hours, and up to six days a week. Mr Steiniger told the court that your job with the firm will continue once you have graduated.

Your history indicates that you have always been interested in outdoor activities. You were involved with scouting for many years and, on the sporting side, played hockey with Eastern Hockey Club for 11 years. Apart from your hunting activities, you are a keen fly fisherman.

Not only have you no prior convictions, but you have not been spoken to by police before this incident.

Evidence of your good character was adduced from a number of witnesses in the course of your trial. To that evidence may be added a written character reference from Mr Keith Bilton JP; I accept that evidence.

During your plea, both your father, Mr Richard Osip, and your employer, Mr Steiniger, spoke of the great distress you have felt as a result of this shooting. I accept that you feel very great remorse at what has occurred. I am told that you have not touched a firearm since February 1999 and are no longer a member of the Sporting Shooters Association. Further, you have sold your car because of its association with these events.

It was put by your counsel that your conduct after you realised that Mr Paterson had been shot was exemplary. Given your panic-stricken state, I am satisfied that you endeavoured to assist Mr Paterson to the best of your ability.

In summary, apart from this incident, you have led a blameless life. You have been industrious in the workplace and have participated in worthwhile social and sporting organizations and, consequently, your prospects of rehabilitation are excellent.

It was put by your counsel that it was unlikely you would ever offend again. I agree with that submission.

In the circumstances of this case, little, if any, weight needs to be given to the element of specific deterrence. Whilst the sentence imposed must reflect an element of general deterrence, the need for it must be tempered by the reality that the circumstances giving rise to this offence are rare.

On the other hand, rehabilitation should be accorded considerable weight. This is particularly so given your relative youth.

Mr Morgan-Payler, on behalf of the Crown, submitted that whilst the offence itself, with the loss of life, is a serious one warranting a sentence of imprisonment, the circumstances surrounding its commission, and in particular your personal history, enabled the sentence to be wholly suspended. Regrettably, I cannot accede to that submission. This is a case which calls for an immediate custodial sentence. However, I will be as merciful as possible.

This is a truly sad case and I am very conscious of the anguish that has been caused both to your family, and in particular, to the family of Gary Paterson. Nothing this court can do, of course, can bring Gary Paterson back, and I am must sentence you having regard to the nature of the offence for which the jury has convicted you and the sentencing principles enunciated in the Sentencing Act. Because of your age, and exceptional prospects of rehabilitation, I will in this instance impose an unusually low non-parole period.

You are sentenced to be imprisoned for 4 years. I fix a period of one year before you are eligible for parole.

Further, I declare that the period to be reckoned as already served under the sentence is 3 days and inclusive of today's date. I direct that there be noted in the records of the court the fact that this declaration was made and its details.

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