R v R P J [2011] VSC 363

(a) Charge 1: On 30 October 2010, without lawful excuse, you recklessly caused injury to Zane McMillan.

(b) Charge 2: On 8 November 2010 you killed Cameron Lowe.

3 The circumstances of charge 1 were as follows. On Saturday 30 October 2010, you attended a Halloween party at the premises of Max Hudson. You observed Zane McMillan walk into the loungeroom of the house and stated, "I want to hit that kid with the red hair". No confrontation occurred and the comment was ignored by Mr McMillan. Later in the evening, there was a scuffle. Whilst there is a dispute as to your precise involvement in the scuffle, it is not necessary to resolve this dispute. Following the scuffle, everyone was requested to leave. You then left the premises and sat outside, yelling at people as they walked past.

4 Subsequently, you and Travis Gurshall came across Mr McMillan and his friend, Todd Parker. Mr Gurshall and Mr Parker began a conversation, while you stood nearby with Mr McMillan. You stepped towards Mr McMillan and forcefully punched him on the left side of his face with a closed fist, knocking him unconscious and causing him to fall immediately to the ground. You then walked off with Mr Gurshall. When questioned as to your motive for hitting Mr McMillan, you stated, "It was the ranga from the party".

5 Your attack on Mr McMillan was entirely unprovoked and gratuitous. Mr McMillan sustained concussion and severe pain to his jaw and teeth for the following week. However, he did not see a doctor to examine his injuries.

6 The circumstances of charge 2 were as follows. On Saturday 6 November 2010, at approximately 11.30pm, Cameron Lowe left his home with the intention of getting something to eat from a Hungry Jack's restaurant. He was in the company of two siblings and some friends. The group attended a Hungry Jack's restaurant, before going to the drive-through area of a McDonald's restaurant, where they were denied service due to not being in a motor vehicle.

7 At approximately 12.00am, you were part of a large group that exited a party bus. You had been drinking alcohol prior to and during the party bus event. Whilst walking towards the same McDonald's restaurant that Mr Lowe's group had attended, you were in an aggressive and fighting mood. You commented that you wanted to fight. Attempts were made by your group to discourage you.

8 As the groups approached each other, there was some conversation between them. Precisely what was said is uncertain. However, comment appears to have been made as to the appearance of Mr Lowe's group, resulting in Mr Lowe sarcastically identifying himself as a drug dealer and telling you not to speak to him. You then advanced towards Mr Lowe. In an unprovoked attack on him, you struck Mr Lowe with a clenched right fist to the left side of his jaw, knocking him unconscious. Mr Lowe fell to the ground lifelessly, his head bouncing on the roadway. You did not render assistance. You left the area immediately, displaying no concern for Mr Lowe. As with the assault you committed the previous week, this attack was entirely without cause and gratuitous.

9 Mr Lowe eventually regained consciousness through the assistance provided to him by his brother. Ultimately, he was taken home. The next day, he could not be woken. An ambulance was called. Mr Lowe was taken to the Alfred Hospital. He underwent surgery to relieve bleeding on, and swelling of, his brain. On 8 November 2010, Mr Lowe's life support was ceased because his brain was showing no signs of activity. Mr Lowe passed away soon after. A post-mortem examination conducted on 11 November 2010 established that the cause of death was a head injury. Mr Lowe was only 17 years of age.

10 On 8 November 2010, you voluntarily attended the Pakenham Police Station. You were interviewed in relation to your assault on the deceased. During the interview, you admitted the following circumstances surrounding the assault:

(a) You had consumed approximately 15 Pulse vodka energy drinks in a three hour period prior to the assault.

(b) Whilst you were drunk during the evening, the effects of the alcohol had worn off by the end of the night.

(c) When you got off the bus, you began walking towards a McDonald's restaurant with a large group of approximately 40 people scattered along the road.

(d) You observed the deceased and his group walking towards you and your group.

(e) You did not interact with the deceased in any way.

(f) You turned around to see if others from the party bus were still coming.

(g) When you turned around, the deceased was less than a foot away from you.

(h) You instinctively stepped back and punched the deceased with a closed right fist to the left side of his jaw.

(i) The deceased's arms fell to his sides and he fell backwards.

(k) The deceased had his arms crossed in a non-threatening stance when you punched him.

(l) There was no conversation between you and the deceased leading up to the assault.

11 At the time of your offending, you were 17 years of age. You are now 18, having been born on 8 April 1993. You left school during Year 8. From that time to the present, you have worked continuously in the floor tiling industry, completing an apprenticeship and becoming a qualified floor tiler.

12 You have no prior convictions and there are no subsequent matters. Prior to your offending, you were a person of good character, with an unblemished record. You come from a good home, and there is nothing in your background to suggest that you might engage in acts of thuggery of the kind that constituted the offences with which you have been charged.

13 I have read the references tendered on your behalf and have listened to the evidence given by your father during the course of your plea. The references are glowing and describe a person very different from one who is prepared to engage in random and gratuitous acts of violence. It is not easy to reconcile the character evidence given on your behalf and your good work record with your actions on the two Saturday nights in question. Whilst you had consumed alcohol on each of those nights, you have not sought to raise this fact as a mitigating circumstance. Indeed, it might be said against you that your consumption of alcohol on the second Saturday night was an aggravating circumstance, having regard to the fact that you should have known (from the first Saturday night) that alcohol might make you aggressive and violent. However, in view of your youth and lack of maturity, I do not propose to take your consumption of alcohol into account as a matter of aggravation.

14 In addition to attending the Pakenham Police Station voluntarily on 8 November 2010 and making admissions in relation to your assault on Mr Lowe, you pleaded guilty to the offences with which you have been charged at the earliest opportunity. Your pleas of guilty have facilitated the course of justice and demonstrate remorse. Further, since your offending, you have been referred to and participated in counselling and a program known as the Gain Respect Increase Personal Power (GRIPP) program. Your participation in counselling and the GRIPP program and your continued commitment to participating in further counselling sessions also demonstrate remorse.

15 In sentencing you, I am required to take into account your youth. Whilst deterrence and denunciation are matters that must be taken into account in sentencing you, a primary consideration is rehabilitation. As I have already said, I accept that you are remorseful in respect of your crimes. Further, I accept that you have good prospects of rehabilitation for the future - a future which it must be said you have denied Mr Lowe.

16 I have read the Victim Impact Statements of Mr Lowe's mother and brother several times. They are moving documents which demonstrate the great loss suffered by Mr Lowe's family. There is no doubt that Mr Lowe was much loved and the loss to those closest to him is immense. Nothing I say, and no sentence I impose, can or will assuage their feelings of grief, anger and loss at what you have done, and at what has occurred. Further, there is simply no equating the loss of a human life with any period of years of imprisonment that I might impose on you.

17 In the case of a youthful offender like you, rehabilitation is usually said to be more important than general deterrence because punishment may in fact lead to further offending. It is correctly said that the incarceration of a young person in the adult prison system, carrying as it does a real potential to cause damage of a kind for which both the offender and the community may pay dearly in the long term, should not be ordered unless the Court is satisfied that the powerful factors which have been accepted by the legislature and the courts as requiring and justifying the existence of a separate youth correctional system have been very clearly displaced in importance in favour of the adoption of a more punitive approach.[1] That said, in the circumstances of this case, the primacy of rehabilitation as a sentencing consideration must be moderated by the need for the Court to express the community's denunciation of your criminal conduct and to deter you and others from engaging in similar conduct in the future.

18 In making submissions as to sentence range,[2] it was put on behalf of the Crown that an appropriate sentence for charge one is imprisonment for between one and two years, and for charge two is a sentence of imprisonment for between three and five years. The Crown also submitted that there should be concurrency pursuant to s 33(1) of the Sentencing Act 1991, making the appropriate head sentence between three and five years. Taking into account your youth (and all the considerations that brings with it), your good prospects of rehabilitation, your good work history, your previous unblemished good character, your remorse, your cooperation with the authorities and your early pleas of guilty, I accept most of what the Crown says as to range and disposition. However, giving full weight to the factors I have just mentioned, I am unable to agree that an appropriate sentence range in respect of the manslaughter of Mr Lowe is imprisonment for three to five years. Unprovoked violent attacks must be deterred. You have chosen to engage in two such attacks on consecutive Saturday nights. The community's denunciation of your conduct must be expressed. In my view, the appropriate head sentence for the manslaughter of Mr Lowe is imprisonment for six years.[3]

19 Taking into account the matters to which I have referred and the matters referred to in s 5(2) of the Sentencing Act, and having regard to the principles of parsimony and proportionality, I sentence you to six years' imprisonment in respect of charge two and 18 months' imprisonment in respect of charge one. I direct that the term of imprisonment imposed in respect of charge one be served concurrently with the term of imprisonment imposed in respect of charge two. I fix a non-parole period of four years. If you had not pleaded guilty, I would have sentenced you to a period of nine years' imprisonment with a non-parole period of six and a half years.

20 I declare that, pursuant to s 18(4) of the Sentencing Act, you have already served a period of two days in custody, and I direct that this fact be noted in the records of the Court. I will also make the order sought under s 464ZF(2) of the Crimes Act 1958 for the taking of a forensic sample.

[1] R v Misokka [1995] VSC 215, per Vincent AJA.

[2] R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677.

[3] Cf Hilder v R [2011] VSCA 192, [42] (Maxwell ACJ)