R v Presnell [2001] VSC 206

Supreme Court of Victoria|2001-06-05|Before: VINCENT, J.

Dale Bruce Presnell, the jury empanelled in the trial at which you were presented for the murder of Allen West Bollard, at Heidelberg on the 17th day of October 1999, found you not guilty of the commission of that offence, but guilty of the alternative charge of manslaughter.

What that means in the context of this matter is that they were not satisfied beyond reasonable doubt that you intended to kill or to cause really serious injury to your victim, but they were so satisfied that your actions were both unlawful and objectively dangerous in the circumstances. I will return to this formulation of the crime of manslaughter and its significance for sentencing purposes in due course.

In summary you have been convicted of armed robbery; 13 counts of burglary; 20 counts of theft; 11 counts of drug related offences; three counts of assaulting a member of the Police Force in the lawful execution of his duty; two counts of resisting a member of the Police Force in the lawful execution of his duty; attempting to escape from lawful custody; three counts of causing wilful damage; two counts of being found on premises without lawful excuse; behaving in an offensive manner in public; assault with a weapon; two counts of unlawful assault; being in possession of a pistol without a licence; three counts of failing to answer bail; two counts of being an unlicensed driver; two counts of driving a motor vehicle whilst disqualified; attempting to commit an indictable offence; going equipped to steal; tampering with a motor vehicle; and making a false report to police.

This history reflects your long-term involvement with the criminal law, the abuse of drugs, and the efforts you employ to avoid the consequences of your behaviour. Yours is indeed a sorry record and one which does not augur well for the future.

The circumstances surrounding the commission of your offence have been canvassed at length during the course of the trial and need only be addressed in relatively brief detail at this stage.

On the night of 16 October 1999 Rebecca Peters and the deceased, who was her de facto husband, were at home with their infant child. At around 8 p.m. Ms Peters was rocking the baby to sleep in the front bedroom when she heard a metallic clicking sound from the vicinity of the family car, after which her husband left the house through the front door. She heard the deceased say, "Hey, what are you doing?" but nothing more. When she went outside shortly afterwards she found him lying on the ground. Mr Bollard was rushed unconscious to hospital but died during the next day. His death resulted from a head wound occasioned by some object that punctured his skull near the temple and penetrated approximately 14 centimetres into his brain. The weapon, although never found, would have been a long thin instrument and it was accepted during the trial as most likely to have been a screwdriver.

During the evening on which this attack took place you were visiting the flat of your friend Mark Wells with your girlfriend Sherry-Dee McKay. This flat was located only a relatively short distance from the home of your victim. You were both affected by a combination of drugs, including heroin and various tablets, as well as marijuana which you smoked at Mr Wells' flat. There was some discussion between Mr Wells and yourself in which you suggested that you both become involved in what is known as a "ram raid", which would have involved the stealing of a car. Mr Wells stated in evidence that he did not take this suggestion seriously. Whether or not that was the case, it appears that you were interested in proceeding with this idea. At the very least it is clear that the jury in your trial found that for one reason or another you ultimately decided to steal the car of the deceased, which was parked within the boundaries of his own premises and only a couple of metres from his front door.

You left the Wells' flat by yourself at around 8 p.m. On the Saturday night and were absent for approximately 10 to 15 minutes. It seems to be clear beyond dispute that you went looking for a suitable vehicle into which you could gain entry by inserting a thin implement into the door lock. When you returned Shanaye Wells, the young daughter of Mark Wells, saw you in the kitchen wiping some object with tissues. She was unable to identify the nature of this object but observed that it left a red mark on the tissues.

The precise detail of what occurred between the deceased and yourself was not determined with any certainty during the course of your trial. In my view, the jury in returning a verdict of guilty of manslaughter, accepted the possibility that there was some kind of struggle. However, it is also apparent that whilst they rejected the reasonable possibility that you may have been acting in self-defence, they were not satisfied that you intended to kill or cause really serious bodily injury to your victim.

On the basis of the findings inherent in the jury's verdict, I consider that I should impose sentence on the foundation that while you were attempting to break into the car Mr Bollard surprised you and a struggle ensued. In your attempt to escape, and consistent with your personality as disclosed by your criminal history, you lashed out at the deceased, who sustained a number of injuries to his body, including abrasions and bruises. The struggle could not have lasted for very long and there must have been almost no noise associated with it. I consider that it is highly likely that, within moments of being intercepted by him, as you were in the process of attempting to steal his vehicle, you struck your victim in the head with the implement that you had used to open his car door, and which was probably already in your hand, fatally wounding him.

You were seen by a witness, Mr Sousmalis, bending over the body of Mr Bollard on the nature strip outside his home. At no time did you attempt to seek assistance for your victim. Instead, when asked by that witness if Mr Bollard was all right, you ran. Mr Sousmalis attempted to follow you in his car but lost you when you ran into a carpark located near the block of flats in which Mr Wells lived. You did not show any concern or compassion for the man that you had rendered unconscious. You were, however, anxious to escape any responsibility for what you had done. In making this comment, I am of course mindful of the possibility that you experienced a sense of panic at the time. I also observe, however, that during conversations with your mother and girlfriend, which were intercepted by the police, you displayed a lack of remorse of any kind and you were preoccupied with either flight or schemes that might enable you to avoid the consequences of the offence that you had committed.

I was informed by your counsel during the plea that you had read and were "moved" by the victim impact statement filed in this Court. I would have been surprised and concerned if a person did not experience such a reaction after reading a personal account of the way in which a crime has impacted on more than one life, and especially so with the knowledge that he is the one who has caused such pain. Whilst I accept that the victim impact statement has stirred your emotions and forced you to confront your behaviour to some extent, I remain unconvinced that you experience a sincere and deeply felt remorse.

I have also read the victim impact statement and once again have sensed the continuing feelings of loss and anguish experienced by family members and others whose lives are intimately connected with that of your victim. In your case, as in so many others with which the judges of this Court have to deal, there are a number of persons who can truly be described as victims. In this instance, a small child is left fatherless, and although she cannot express her feelings her life from the earliest stages involves a dreadful loss that will always be with her and is likely to impact upon her in many ways.

The crime of manslaughter which you committed can arise in a wide variety of circumstances and there are different formulations of its elements. However, it must be borne in mind that each of these formulations identifies the circumstances in which a human life is unlawfully taken, or lost. As a consequence of your unlawful assault upon him, a person, who did nothing more than respond when he heard the sound of someone attempting to steal his car, is dead. That is an irrevocable reality and one which is regarded as being of profound importance to the community, which this Court represents.

Always conscious of the fundamental importance that our society attributes to human life, through the sentences that they impose, and consistent with the incorporation of other relevant sentencing considerations, the courts must endeavour to deter those who are so inclined from acting as you have done. They must express the condemnation and rejection by the community of the unlawful resort to potentially fatal violence.

In view of your extensive criminal involvement and the nature of the enterprise in which you were engaged at the time of your assault upon the deceased, the principles of general and special deterrence must be regarded as important sentencing considerations in your case. Significant in this context is the fact that this assault occurred as you endeavoured to avoid interception for the commission of another crime, the attempted theft of a motor vehicle, which in turn was possibly related to the contemplated commission of a third crime.

With respect to your personal background, which must also be taken into account when determining an appropriate sentence, you are now aged 27 years, having been born on 2 June 1973. As a child you lived with your mother and a man who you believed was your father, both of whom worked hard to provide a stable and comfortable home life. You were a good student and sportsman and your life was fairly unremarkable until the tragic death of the person you believed was your father when you were 12 years of age. After his death you discovered that your biological father was in fact someone else. Soon after these events your mother formed a new relationship and so another stranger entered your life taking up the role of father figure. I am confident that this combination of events would have had a powerful impact on your young life, shattering your sense of stability and identity. It is reasonable to infer that you experienced a profound sense of alienation from and distrust of relationships. Against that background it is not difficult to see how it came about that you began to seek comfort in the effects of drugs. You have struggled with that addiction ever since.

At the time of committing this offence, you were enmeshed in a lifestyle dominated by drugs. Sherry-Dee McKay and yourself had no stable place to live. It appears that you sometimes stayed in a room in Collingwood, at other friends' houses on couches and floors, and even at times in the laundries of Housing Ministry flats. Neither of you had been eating or sleeping properly and, as I have indicated, your lives revolved around your addictions. I am prepared to accept that you were not functioning normally and that your life situation was chaotic.

Although you are an intelligent person and still continue to have the support of your mother and family friends, including a witness Mr Macleod who gave evidence in this matter, it is not possible to possess a strong sense of confidence in your prospects of successful reintegration into the law abiding community. However, you are still young and your eventual rehabilitation must be accorded substantial significance as a sentencing consideration.

During the course of your plea it was made apparent that you have managed to remain off drugs for several periods of time. These usually occurred after you were released from prison. On each of these occasions you had the full support of your mother, who is described as very loyal, and were given employment by Mr Macleod. You never, however, managed to desist from drug abuse for any significant period. On the last such occasion Mr Macleod stated in evidence that he suspected that you began using again only one month after your release from prison. Important also is the fact that in the period preceding the offence you engaged in what has been described as your worst descent into drugs. Some allowance must be made for the influence of drugs upon your conduct when assessing your culpability for your offence. You clearly have some capacity to curb your addiction and to take yourself off drugs and have sporadically attempted to do so. That consideration also must be taken into account in imposing sentence upon you as it raises the potential that you could in the future avail yourself of that capacity.

In determining an appropriate sentence to be imposed in your case I have had regard to the range of sentences handed down in this Court over recent years for the commission of the crime of manslaughter, bearing in mind that the sentences in other cases can provide only limited assistance as each matter must be considered in the light cast by the circumstances relevant to the offence and offender involved.

When presenting submissions on your behalf with respect to the sentence to be imposed your counsel contended that your case should be regarded as falling within the "middle range" of seriousness. After giving thought to that situation I have arrived at the view that to do so would not be appropriate. You are a recidivist criminal who when intercepted or threatened with capture has a capacity to react violently and dangerously. That is what you did on this occasion and in consequence the life of a member of this community was lost.

Ultimately I have arrived at the view that the sentence which should be imposed is one of imprisonment for a period of 10 years. I fix a non-parole period of eight years.

I declare that the period of pre-sentence detention, being 596 days, be reckoned as having been served under the sentence hereby imposed. I direct that this declaration and its details be entered in the records of the court.

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