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[2020] VSC 563
General information, not legal advice.
Supreme Court of Victoria
2020-09-03
Croucher J
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Manslaughter - Accused, in anger, punched victim to head with two left-right combinations while victim raised hands in defensive pose - Victim fell backwards and struck head on roadway, causing catastrophic brain injury - Accused dragged unconscious victim off roadway but left in bushes - Accused later called ambulance, went to police and made admissions - Victim died three days later - Early plea of guilty - Remorse - Numerous prior convictions for assault - Traumatic childhood - Homeless - Entrenched drug and alcohol abuse - Positive changes on remand - Guarded/reasonable prospects of rehabilitation - COVID-19 restrictions in prison - Current sentencing practices - Relevance of general deterrence, specific deterrence, just punishment, denunciation, community protection and rehabilitation - Parsimony - Sentence of nine years' imprisonment with non-parole period of six years - But for plea of guilty, sentence of (at least) eleven years' imprisonment with non-parole period of eight-and-a-half years.
1 In the early hours of 19 December 2019, on a street just off the Nepean Highway in Frankston, Daryl Rivett, in a fit of drunken pique, punched Lamin "Lee" Masterton-Bojang with two left-right combinations to the head. Mr Masterton-Bojang, who had his hands up in a defensive manner at the time, fell backwards, striking the back of his head on the roadway. He did not move a muscle thereafter.
2 After dragging his motionless victim off the road to avoid any risk of further harm from passing vehicles, Mr Rivett left him there alone, unconscious, under some shrubs. Eventually (about an hour later), Mr Rivett came to his senses and called emergency services from a nearby public payphone, albeit he did not give his name and left before the ambulance arrived. Mr Masterton-Bojang was rushed to the Frankston Hospital and then to the Alfred Hospital in Melbourne. Later that evening, after being urged to do so by his former partner, Mr Rivett handed himself in to police, to whom he admitted his involvement in the assault.
3 Sadly, three days later, Mr Masterton-Bojang died in hospital as a result of his "non-survivable" brain injury. He was 53. Inevitably, his family and friends are devastated at the tragic loss of their loved one.
4 Initially, Mr Rivett was arrested and charged with assault and related alternative offences. After Mr Masterton-Bojang died, however, he was charged with manslaughter. He has remained in custody since his arrest.
5 Mr Rivett has since pleaded guilty to, and is now to be sentenced for, manslaughter. There is no dispute that he must receive a term of imprisonment. The main issues to be determined concern the duration of that prison sentence and its associated non-parole period.
6 Numerous competing factors go into the selection of such a sentence. As will be seen, in this case, matters pointing in one direction include the nature of the offence (including, as it does, the taking of another's life by an unlawful and dangerous act, albeit unintentionally so), its maximum penalty, the aggravating features of this particular instance of the offence, and the impact it has had on Mr Masterton-Bojang's family and friends. Among the matters pointing in the other direction are the mitigating factors, which include Mr Rivett's co-operation with the authorities, his early plea of guilty and remorse, and his prospects of rehabilitation, such as they are. A consideration which limits leniency and adds to the weight to be accorded to sentencing purposes (such as the need for specific deterrence and protection of the community) is Mr Rivett's extensive prior history of assaults. Yet, pulling the other way again is his deprived early life and its impact on his moral culpability.
7 As always, achieving a just and appropriate balance among these and other competing factors is not as simple as it may seem. Sentencing is not a process attended by mathematical certainty or surgical precision. Nor is it colour by numbers. Instead, it involves an instinctive synthesis of the various considerations, but informed by principle.
8 Before announcing sentence, I shall summarise in more detail the background to, and events surrounding, the death of Mr Masterton-Bojang;[1] outline the victim impact statements; and discuss the nature and gravity of the offending, the factors in mitigation and the various applicable sentencing principles and purposes.
Summary of background to, and events surrounding, offence
9 I turn first to Mr Masterton-Bojang's background.
10 He was born in Gambia on 19 February 1966, the eldest of ten children. At the age of 18, he moved to Sweden with a sponsor family to complete his schooling. He learned to speak Swedish and English fluently, and completed a locksmith's course. He was a keen golfer.
11 While living in Sweden, Mr Masterton-Bojang married Anna Louise, his first wife. Together, they had two children (both of whom are now adults and have provided victim impact statements).
12 After the breakdown of his first marriage, in 2007, Mr Masterton-Bojang emigrated to Australia. Here, he met his second wife, Kate Masterton-Bojang (who has made a victim impact statement too). They also had two children together (both of whom are at primary school). That marriage ended in 2012.
13 Subsequently, Mr Masterton-Bojang had two more children to his third partner, Alice Morrell. That relationship ended in February 2018.
14 He then met his partner Shirley Clay with whom he lived in Frankston up until the time of his death. (Ms Clay also provided a victim impact statement.)
15 Mr Masterton-Bojang had some form of contact with all six of his children and continued to see those who lived locally.
16 Mr Rivett was born in Frankston on 19 October 1965, where he has lived most of his life.
17 At the time of the offence, Mr Rivett was aged 54 and living in a concealed campsite in scrub on the Seaford foreshore.
18 I shall say more of his personal circumstances later in these reasons.
Relationship between Mr Rivett and Mr Masterton-Bojang
19 Mr Rivett had known Mr Masterton-Bojang for some time. They were not close but had interacted on friendly terms over a period of months, including meeting up from time to time at hotels and engaging in banter and small talk with each other about inconsequential matters.
20 On Wednesday 18 December 2019, at about 1:00 p.m., Mr Masterton-Bojang left the home he was sharing with his partner, Ms Clay, in Frankston. He was wearing dark pants, a light blue t-shirt and a red baseball cap. His distinctive dreadlocks came out from underneath his cap. He also had a silver coloured chain around his neck, which had several rings hanging from it. He wore the chain regularly.
21 He arrived at the Pier Hotel in Frankston at about 2:40 p.m., where he spent the afternoon and the evening. At about 6:10 p.m., he spoke to Ms Clay and told her that he loved her, that he was okay and that he did not need a lift anywhere.
22 At 9:00 p.m., Rose Loredo arrived at the Pier Hotel. Ms Loredo had known Mr Masterton-Bojang for about two months. Previously, he had shown her how to use the gambling machines to place bets at the hotel. The pair moved into the smoking lounge and socialised with other hotel regulars before playing various poker machines and leaving the hotel together at 9:39 p.m.
23 They walked north along Kananook Boulevard before doubling back towards the Pier Hotel to buy alcohol from the liquor outlet located opposite at 9:50 p.m. At 9:58 p.m., CCTV captured them walking in the direction of the squat house occupied by Ms Laredo, which was on the corner of the Nepean Highway and Rosella Street. They arrived by 10:20 p.m. and then sat drinking and talking.
24 At midnight, Ms Clay rang Mr Masterton-Bojang, who told her he was talking with friends about 100 metres from the Pier Hotel. The couple had a disagreement about him staying out.
25 Mr Masterton-Bojang was seen arriving back at the Pier Hotel, alone, at 1:56 a.m. He remained by himself and used the racing gambling machine. He left at 3:00 a.m., this time crossing over to the eastern side of the highway.
26 Ms Clay called him again at 3:09 a.m., but Mr Masterton-Bojang said he was still at the Pier Hotel. He asked if she would pick him up in 20 to 30 minutes, but she refused. He was then seen on CCTV heading in the direction of Ms Laredo's squat.
27 After Mr Masterton-Bojang arrived at the squat, he and Ms Laredo sat together and talked. Mr Rivett, who had been in a relationship with Ms Laredo previously, burst into the squat and confronted them, saying, "I know you two are screwing." Mr Masterton-Bojang got to his feet and said, "I haven't done anything to your girl. I love you, bro. I wouldn't do this to you, bro." Ms Laredo put herself between them and asked them to go outside and cool off.
28 The two men went to the front yard where Mr Rivett drank cask wine as they spoke. They agreed to go back to the Pier Hotel. Ms Laredo declined their invitation to go with them.
29 Mr Rivett became enraged again and further accused Mr Masterton-Bojang of sleeping with Ms Laredo. She asked them to leave the property and watched as they walked north along Overton Road (which is in the opposite direction to the hotel, and instead is in the direction of Mr Rivett's campsite).
30 Ms Laredo watched as Mr Rivett became more aggressive towards Mr Masterton-Bojang. At one point, Mr Rivett charged towards him while he was walking backwards with his hands up in a defensive stance. He then began to push and punch at him.
31 The argument between the two men woke a resident of Overton Road, who heard swearing and yelling followed by a physical altercation. The resident heard one louder, more aggressive male yell at the other, "Fuck you cunt. You'll get what's coming to you."
32 Ms Laredo then witnessed Mr Rivett punch Mr Masterton-Bojang to the face with two left-right combinations. He fell straight backwards onto the road surface. He did not move thereafter.
33 At this point, I pause to note two things. First, Ms Harper, who appeared for the Director on the plea, confirmed that the prosecution case was that it was the striking of the back of Mr Masterton-Bojang's head on the roadway that caused the brain injury that killed him. While the punches caused the falling backwards, and therefore the hitting of the head and death, it was not suggested that the punches themselves were of sufficient ferocity to cause death.
34 Secondly, Mr Tiwana, who appeared for Mr Rivett on the plea, conveyed that his instructions regarding the assault and its lead-up were as follows. Given his level of intoxication, Mr Rivett concedes that his memory is not complete or entirely accurate, but he does recall something being said about Mr Masterton-Bojang and Ms Laredo being intimate. He remembers leaving Ms Laredo's squat in order to go home to his tent at the campsite, but not to the Pier Hotel (which is consistent with heading north and with the point at which the assault occurred and Mr Masterton-Bojang was found). He cannot remember where Mr Masterton-Bojang was intent upon heading at that time.
35 In any event, he and Mr Masterton-Bojang talked as they walked along Overton Road, whereupon an argument developed between them. Mr Rivett's recollection is that it was an argument over money that he was said to have owed Ms Laredo. He denied that he owed any money. The argument, he recalls, became heated and then spontaneously resulted in the assault. Consistently with the prosecution summary, he told forensic psychologist Patrick Newton (whose report was received as an exhibit on the plea) that he hit Mr Masterton-Bojang when he had his hands up in a defensive posture. As a result, Mr Masterton-Bojang, who was himself quite drunk, fell backwards onto the road.
37 I turn next to the events following the assault.
38 Mr Rivett then dragged the motionless Mr Masterton-Bojang off the road and into the shrubs beyond the shoulder.
39 CCTV footage shows that, at 3:36 a.m., Ms Laredo walked from the location at which Mr Masterton-Bojang was left towards the squat house. Mr Rivett also returned to the squat house and told Ms Laredo that he had "knocked Lee out up the road".
40 CCTV footage shows Mr Rivett walking towards his campsite at 3:42 a.m. and then south past a public payphone in Overton Road at 4:23 a.m. He was next seen walking towards the location of Mr Masterton-Bojang at 4:34 a.m. and then towards the public payphone at 4:38 a.m.
41 At 4:40 a.m., he rang emergency services from the payphone. Among other things, he told the operator the following:
This guy - he's asleep in the bushes ... I can't revive him. Like, I've asked him to wake up but I don't know if he's drunk or what. ... He got punched to his mouth. ... And I tried to revive him and nup. ...
42 He also said that the man was unconscious but breathing. The operator tried to get him to leave the line open and attend to the patient, but Mr Rivett explained that he was 200 yards away. He promised the operator that he would flag down the police or the ambulance when they arrived. As it turned out, he left the scene before police or paramedics arrived.
43 Once the ambulance did arrive, at 4:46 a.m., Mr Masterton-Bojang was found to be unconscious, with bleeding from his mouth and the back of his head. He had a Glasgow Coma Score of only three. He was taken to the Emergency Department at the Frankston Hospital at 5:09 a.m. Subsequently, he was transferred to the Alfred Hospital in Melbourne, arriving at 9:00 a.m.
44 At some point, he was assessed by a neurosurgical registrar as having a non-survivable brain injury.
45 Police were notified of his condition and set up a crime scene around the area in which he had been found. A ring from his silver chain was found in the gutter.
46 In the evening, Mr Rivett returned to Ms Laredo's squat. Ms Laredo encouraged him to hand himself in to police. Soon afterwards, at 1:25 a.m. the next morning (i.e. on 20 December 2019), he did just that, by presenting himself to the watch-house at Frankston Police Station. He told the officer on duty his name, date of birth and that he was homeless but living in a tent at Seaford. He said he had had a fight with a man named "Lee" (whose surname he did not know). He said he wished to speak to the police members investigating the matter. He was arrested by a detective at 1:35 a.m.
47 Later that morning, Mr Rivett was formally interviewed by police at 1:52 a.m. and again at 10:55 a.m. He admitted that he had "had a fight" with this man; that he had "knocked him out"; and that he (the victim) had "jump[ed] backwards" and "did the damage to himself".
48 On 22 December 2019, active treatment of Mr Masterton-Bojang was ceased. Sadly, he died at the Alfred Hospital at 12:15 p.m. the same day.
49 As a result of an autopsy conducted on Christmas Eve, specialist forensic pathologist Dr Joanna Glengarry concluded that the cause of death was "blunt force head injuries". Included in the pathologist's comments were the following remarks:
There was a laceration to the back of the head beneath which was bruising and a fracture to the right side of the skull base. An injury such as this may result from an impact to the back of the head, for example, from a fall (although an impact to the back of the head is also an explanation). The force (and therefore the risk of injury) is increased when the fall is accelerated by impacts to the face.
50 As I have said, it is accepted by Ms Harper that it was the hitting of the back of his head on the roadway that was the immediate cause of the injuries that resulted in Mr Masterton-Bojang's. That is the basis on which I shall sentence.
51 As also indicated earlier, having been charged with assault-related offences initially, Mr Rivett was charged ultimately with manslaughter.
52 He pleaded guilty to that charge at a committal mention in the Magistrates' Court. There was no contested committal hearing.
53 Mr Rivett honoured that plea in this Court upon arraignment on 10 June this year and again when, at the plea hearing on 6 August, for technical reasons only, he was arraigned a second time.
54 I turn now to the victim impact statements, which form part of the materials to which I must have regard in sentencing.
55 A total of six such statements were filed by some of Mr Masterton-Bojang's loved ones. All bar one were read to the Court, whether by the author or by Ms Harper. In particular, the statements were made by Mr Masterton-Bojang's older children Aminata Bojang and Sam Bojang; his partner Shirley Clay; his former partner (and mother of his middle two children) Kate Masterton-Bojang; his sister Binta Sima; and his friend Sarah Ohis. I have read the statements again in chambers.
56 They convey the aching, unending grief; the welling and subsiding of anger; and the loss of enjoyment of life suffered as a result of the untimely and unlawful death of Mr Masterton-Bojang. His loved ones speak of sitting with him, holding his hand and kissing him, while he lay in a hospital bed, every part of his face and head swollen, surviving only on life support. His generation pine for his children, who never had a chance to say goodbye; while his children cling desperately to happy memories but are tormented by the loss of the chance for many more. These and all other sentiments in the statements are profoundly moving.
57 In so far as it is permissible to do so, I have had regard to the contents of the victim impact statements in considering sentence.
58 But I wish to add this. There is nothing this Court can say or do that will heal the grief and pain suffered by Mr Masterton-Bojang's family and friends. The sentence I must impose is not a reflection of the worth of his life - as if anything so precious could ever be valued in any event. Rather, as intimated earlier, the sentence I am about to impose reflects many factors which I am required by law to consider and balance, only one of which is the impact on victims.
59 I turn now to the nature and gravity of the offence.
61 The form of manslaughter relied on is manslaughter by an unlawful and dangerous act. This means that, when he punched Mr Masterton-Bojang and thereby knocked him to the ground, while Mr Rivett had no intention to kill or cause really serious injury or recklessness thereto (for otherwise it would be murder), his plea of guilty accepts that his conduct was unlawful and dangerous and that it caused death. The punching was unlawful because it amounted to an assault. It was dangerous because a reasonable person in his position would have realised that, in punching him as he did, he was exposing him to an appreciable risk of serious injury.[4]
62 While manslaughter is one of the more serious crimes known to the law, the circumstances of its commission, and the resulting sentences, vary widely. Usually, voluntary manslaughter (which no longer exists in Victoria since the abolition of provocation as a defence to murder) is the category regarded as the most serious; then manslaughter by unlawful and dangerous act is usually a rung lower; and then manslaughter by criminal negligence is usually another rung further down.
63 Often, there will be a lower level of moral culpability in the offender who killed by criminal negligence than the one who killed by an unlawful and dangerous act. This is because, in most cases of criminal negligence, there will be no intent on the part of the offender to cause any harm whatever to the victim, whereas such an intention usually (but not always) will be present in cases of manslaughter by an unlawful and dangerous act. But there is no inflexible rule. Some instances of manslaughter by criminal negligence will be more serious, and result in heavier sentences, than instances of manslaughter by an unlawful and dangerous act. Each case must turn upon its own particular facts.[5]
64 This instance of manslaughter by unlawful and dangerous act had some serious features, including the following.
(a) First, the offence is serious, by definition. The life of another human being - a father of six, a partner, a former partner, a brother, a friend - has been lost as a result of unlawful and dangerous behaviour.
(b) Secondly, inevitably and as the victim impact statements make so plain, the grief and pain for the loved ones left behind is palpable.
(c) Thirdly, it is not suggested that there was any provocation or any other reason for the assault that might justify Mr Rivett's behaviour.
(d) Fourthly, he punched Mr Masterton-Bojang, not once, but four times.
(e) Fifthly, the punches were to the head, which is a vulnerable part of the body.
(f) Sixthly, he assaulted him while he had his hands raised in a defensive stance. Indeed, there is no suggestion that he posed any threat to Mr Rivett at any stage.
(g) Finally, while Mr Rivett dragged his victim off the road for his own protection (which is mitigatory), nevertheless, it was callous just to leave him there in such a parlous state. Similarly, while he eventually rang emergency services (which, again, is mitigatory, and upon which I shall expand shortly), that did not occur until an hour after the assault, which is a significant time to leave a gravely injured person without assistance. I should add, however, that there is no suggestion that earlier intervention might have saved his life.
65 As to the one-hour delay in ringing for an ambulance, Mr Tiwana explained that his instructions were as follows. Mr Rivett had never used a payphone. His intention, from the outset, was to call for an ambulance. He looked for his mobile phone, but realised that he did not have it on his person. He then at some stage walked back to his tent in the hope of finding his phone there, but to no avail. He went to the public toilets, but could not find it there either. Next, he walked to Ms Laredo's squat and he could not see it there. Finally, he returned to the payphone and made the phone call to the ambulance.
66 In response, Ms Harper submitted that Mr Rivett could have gone to any of the nearby houses and sought assistance if he did not have a mobile phone on him. The fact is that there was a payphone nearby and, in her submission, to suggest that he did not show a lack of regard for Mr Masterton-Bojang misstates the position. Ms Harper accepted that moving him off the road prevented his being run over, but he was also placed in the shrubbery, which meant that he could not be seen easily by others who might be looking for him.
67 It seems to me that there is some force in Ms Harper's first submission. Mr Rivett could have knocked on a neighbour's door. It might be said that, whether the truth be that he had no phone and did not think to contact a neighbour or that he was in a state of panic and self-protection initially, the fact remains that Mr Masterton-Bojang was left alone for an hour without good reason. The former explanation, however, which I am not prepared to exclude, suggests a lower level of moral culpability than the latter, and is perhaps explained in part also by his drunkenness. The positive thing, which I shall come to presently, is that he did eventually make the required call.
68 As for placing Mr Masterton-Bojang in the shrubbery, I am not satisfied that that was done with the intention of concealing him from view. Such behaviour tends to be inconsistent with the fact that Mr Rivett did eventually contact emergency services.
69 On the other hand, there are several factors limiting the gravity of this instance of manslaughter, including the following.
(b) Secondly, there was no gratuitous kicking, punching or the like while the victim was prostrate, as sometimes happens.
(c) Thirdly, while there were four punches, they were thrown in quick succession and the assault was neither protracted nor savage.
(d) Fourthly, the assault appears to have been spontaneous rather than premeditated.
(e) Fifthly, while I am satisfied that the nature of the punches to the head, when combined with the threatening exclamation heard by a local (namely, "You'll get what's coming to you"), indicated an intention to cause some harm, I am not satisfied that Mr Rivett had an intention to cause serious injury.
(f) Sixthly, while history shows that even relatively minor assaults, including those that involve a single punch or push, can result in grave injury or death, I am not satisfied that Mr Rivett foresaw the risk of any such thing.
(g) Finally, while these are matters that more happily fall in the category of post-offence mitigating factors, as I indicated a moment ago, Mr Rivett moved his victim from the road to a grassed area to prevent him from being run over by passing traffic and he called emergency services (albeit belatedly), which tells in his favour.
70 While some say attempts at classification of the gravity of an offence are unhelpful, or may even be apt to mislead, I think that those who have an interest in the process (especially the accused and the Director) are entitled to hear what the judge thinks about where the particular offence fits on a scale of objective gravity. Recognising that there are limitations in employing any sort of taxonomy, I think that this case is far from the worst examples of manslaughter and is not at the lowest end of the scale either. Instead, it ranks around the lower end of mid-range of objective gravity.
71 In estimating the objective gravity of the offence as being around the lower end of the mid-range, I do not mean that it therefore follows that, absent any mitigating factors, the offence would attract a prison sentence below the mid-point between zero and the maximum available (20 years). Instead, I mean that its objective gravity ranks around the lower end of the mid-range of those cases encountered in practice.
72 Later in these reasons, I shall discuss to the cases to which counsel referred as useful comparators in gauging current sentencing practices for this type of offence.
73 I turn now to Mr Rivett's background and personal circumstances in more detail, as conveyed by Mr Tiwana and in the psychological report of Mr Newton (which was received in evidence without objection). As will be seen, some aspects of these circumstances have greater or lesser relevance to sentencing.
74 I indicated earlier that Mr Rivett was born in Frankston in 1964 and that he has lived there most of his life. He is the eldest of three children in his family. His father had initially worked as a mechanic before moving into contract cleaning. His mother devoted herself to home duties.
75 Mr Rivett had an abusive and chaotic family background. His father had been a heavy drinker who frequently became violent when drunk. Images of his father beating his mother are among Mr Rivett's earliest recollections. As the psychologist noted, these images are linked to powerful feelings of distress and anger in Mr Rivett which have continued to trouble him. He would "try to stand up for [his] mum" from about age six, but this would do little beyond ensuring that his father turned his attention upon him, a child. He suffered heavy beatings and harsh physical abuse throughout his childhood and into his adolescence.
76 From an early age, Mr Rivett would avoid his father. At first, this took the form of hiding around the family home, but, as he grew older, he would "run away from home" for increasing periods. (As Mr Newton observed, in many ways, this conduct was a harbinger of the homelessness that subsequently destabilised his life.)
77 Mr Rivett believed that there had been no intervention to assist his family when he was a child. Yet, despite the problems in the marriage, his mother and father had remained together.
78 He has been estranged from his family of origin for many years and has no ongoing contact with either his parents or his sisters.
79 Mr Rivett attended Armata Primary School in Frankston North. He acquired functional literacy and numeracy skills without undue difficulty. While better at hands-on subjects, he had no significant academic problems. Mr Rivett progressed through the grades without repeating and had some friendly connections among his peers.
80 He attended Monterey Technical College for his secondary education. He found the transition to secondary school difficult. He was subjected to extensive bullying during the early years of secondary school. This bullying caused him such distress that he attempted to hang himself whilst at a school camp. Unfortunately, this event did not result in any counselling or other follow-up. Instead, incredibly, he was suspended for the following two weeks.
81 After he returned to school, the bullying resumed in earnest. During the final year of his schooling, he began to "fight back" against those who harassed him. He became involved in multiple fights, which attracted further disciplinary sanction. These culminated with his bringing a live grenade to school and threatening his tormentors with it. He told Mr Newton, "After that, no-one picked on me again." He left school shortly after that incident.
82 Mr Rivett commenced an apprenticeship as a motor-mechanic. He completed three years of this qualification before discontinuing it.
83 He had "lots of jobs" between the end of his schooling and 1995. These were manual, factory or semi-skilled positions which he typically held for brief periods. He acknowledged that his drinking and drug use had taken a heavy toll upon the stability of his employment.
84 After a shoulder injury in 1995, he was unable to work and was granted a Disability Support Pension because of this injury and the effects of his substance abuse. He did not obtain another paid position after that.
85 At the time of his assessment by Mr Newton, Mr Rivett was employed within the prison as a kitchen hand. He has been enjoying the work and finding it helpful to have structured activity in his schedule.
86 Mr Rivett has a long-term history of alcohol and drug abuse.
87 He commenced heavy consumption of alcohol at only 13 years of age. He obtained alcohol from his father's supply or from older associates and was in the habit of binge drinking from the outset. As he aged and his access to alcohol became easier, the amount he consumed steadily increased. It was rare for him to be abstinent from alcohol for even a day. His typical pattern was to drink throughout the day and maintain a steadily increasing state of intoxication until he lapsed into unconsciousness sometime in the early hours of the morning. He estimated to Mr Newton that he might consume "a box or two of beer" or "two [ten-litre] casks of wine"; although, he added, "Really, I'd drink whatever I could get."
88 Mr Rivett had "cut [his] drinking back after [he] lost [his] licence about ten years ago". From that time, he had typically consumed "half a dozen beers a day". That, I fear, was an underestimate. Indeed, in the next breath, he acknowledged that he might "sometimes consume a bit more than that". For instance, he said that he had consumed about five litres of wine on the day of the offending and that this had left him mildly intoxicated. In other words, he drank his alcohol as if it were oxygen.
89 Mr Rivett commenced using amphetamines at 18 years of age. He enjoyed the mental clarity and energy which these drugs provided and quickly became a regular user of them. The amount he used escalated rapidly and he soon switched from smoking and drinking the drugs to injecting them. In a similar vein, he moved to using methamphetamine from about 19. He injected "about a point of 'ice' every day" until he was arrested on this matter and remanded in custody.
90 Mr Rivett also reported that he had used various other drugs. For example, he "sniffed glue" for about two years in his teens, and also used hallucinogenic mushrooms.
91 Mr Rivett engaged briefly with drug and alcohol counselling at PENDAP in the past, although he was unable to be clear to the psychologist about what the counselling had covered or what benefit he had derived from it. He could not say if he had attended drug rehabilitation courses during either previous community correction orders or whilst incarcerated. Unfortunately, there are no such courses currently available in the prison on account of COVID-19 restrictions.
92 Mr Rivett reported to the psychologist that he had found the abuse of his childhood to be distressing and upsetting. This was compounded by the bullying he experienced during secondary school. In Mr Newton's opinion, these experiences not only undermined the development of Mr Rivett's personality but also modelled for him problematic ways of managing stress (namely, violence, acting out and substance abuse) which have served as a template that has underpinned many of his subsequent problems.
93 Mr Newton also noted that Mr Rivett made at least one serious attempt at self-harm in his teens and had severe behaviour problems. Despite this, he had not received any professional intervention to address his problems. Instead, he was punished and subjected to further denigration. Additional suicidal gestures followed at age 24 (holding a loaded pistol to his head) and about a year later (overdosing on methamphetamine).
94 Mr Rivett was prescribed the antidepressant Zoloft (Sertraline) in 2009. He had taken it since then, although he acknowledged that his compliance with his medication was piecemeal at best. In Mr Newton's opinion, such limited compliance reduced the efficacy of the medication dramatically and led Mr Rivett to resort to a combination of alcohol and (especially) methamphetamine abuse to elevate his mood.
95 Mr Rivett continues to take his antidepressants whilst in prison. He is now fully compliant with the medication and this has resulted in a remission of his depressive symptoms.
96 Mr Rivett has had three key relationships as an adult.
97 The first of these, which commenced in about 1982, was with Katrina Wilford. There are two sons of the relationship who are now aged in their twenties. The relationship was problematic and unstable. Mr Rivett believes that the main cause of difficulty between them was their mutual drug use. They separated in 1994 but remained in contact over the next 14 months. Sadly, Ms Wilford was killed in 1995 when she was struck by a motor vehicle while crossing a road. Mr Rivett had "a total breakdown" after that. He has no ongoing contact with his sons.
98 Mr Rivett's next relationship was with Sharon Jansen. They were together from 2000 until 2015, although the indications are that the relationship actually ended in 2012. While they had no children together, Mr Rivett acted as stepfather to Ms Jansen's two daughters. He described their relationship as volatile and problematic. He believed Ms Jansen had had affairs with others while they were together. Their mutual drug use further destabilised their interactions with each other. On Mr Rivett's report, the relationship was also marred by mutual aggression and violence. While he alleges that Ms Jansen was the principal aggressor, he said that the relationship ended when he was imprisoned for eight months on family violence charges. (Based on Mr Rivett's criminal history, this must have occurred late in 2012.) Mr Rivett remains in contact with Ms Jansen's daughters and they have continued to correspond with him while he has been in prison. One of them has provided a character reference.
99 Mr Rivett's most recent relationship was with Rose Laredo. They met when he was staying in a boarding house in 2016 and quickly formed a relationship. Ms Laredo fell pregnant with their child, Amber, within weeks of their meeting. On Mr Rivett's account, the relationship was unstable. The protective authorities became involved with them in the lead-up to Amber's birth on account of their mutual drug use and emotional vulnerability. He left their unit soon after Ms Laredo made an allegation of family violence against him (which he strenuously denies). On his account, Ms Laredo was unable to maintain the unit without his assistance and they both became homeless soon after that. Amber was taken into full-time foster care. Mr Rivett and Ms Laredo had continued in a semi-formal relationship until about January 2019 when she "nicked off for three months". Mr Rivett was adamant in stating to Mr Newton that, while he was aware that Ms Laredo had pursued sexual intimacy with several other men, he had not felt jealous about this since he had no longer considered they were in an exclusive relationship.
100 I turn now to Mr Rivett's criminal history, which includes diverse offending from 1983 to 2018.
101 During that period, at least fourteen of his appearances (all of which were in the Magistrates' Court) involved over 20 violent offences, including assault in company, unlawful assault, recklessly causing injury, intentionally causing injury, assaulting police and assaulting an emergency worker.
102 Mr Rivett has also accrued convictions for breaching a family violence intervention order, public order offences (including public drunkenness), driving-related matters and property damage.
103 He has received multiple fines, community correction orders and suspended sentences, and has served two terms of immediate imprisonment - one of eight months from late-2012 and another of one month in 2002.
104 In the concluding part of his comprehensive psychological report, Mr Newton offered, inter alia, the following opinions concerning Mr Rivett:
105 Mr Newton added that, from a psychological perspective, he would be keen for Mr Rivett, while in prison, to receive the maximum programmatic input possible, including substance-focussed treatment, practical training for living skills in the community and a programme for violent offenders.
106 I turn now to the mitigating factors on which Mr Rivett relied.
107 First, Mr Rivett co-operated with the authorities in several ways that helped make the case against him. In particular, when he contacted emergency services, in addition to revealing Mr Masterton-Bojang's location and condition, he admitted that he had been punched. Next, he admitted to Ms Laredo that he had knocked out Mr Masterton-Bojang. Finally, after speaking to her, he handed himself in to police and admitted that he had fought with Mr Masterton-Bojang and knocked him unconscious.
108 At the time that he did these things, the only eyewitness (Ms Laredo) had not gone to the authorities. Further, these actions alerted police to the assault and significantly curtailed the need for an extensive investigation into who was responsible and precisely what had occurred.
109 Secondly, Mr Rivett pleaded guilty at the earliest practical opportunity. He indicated that plea at a committal mention in the Magistrates' Court and honoured that indication when arraigned on indictment in this Court.
110 This avoided the need for a contested committal hearing and trial, and thereby relieved potential witnesses of the ordeal of giving evidence and saved the considerable resources that would have been devoted to such proceedings. The plea therefore has substantial utilitarian value. As other judges of this Court have observed recently, this utilitarian benefit is increased at the present time given the backlog of trials in the wake of the COVID-19 pandemic.[6] I also accept that the plea of guilty indicates a willingness to facilitate the course of justice.
111 Thirdly, I am satisfied that Mr Rivett is genuinely sorry for the harm he has caused, and that he is remorseful. There are four sources of evidence that drive me to that conclusion.
112 First, his actions in calling emergency services, handing himself in and making admissions all suggest remorse.
113 Second, his early plea of guilty also tends to demonstrate as much.
114 Third, in his report, Mr Newton observed that Mr Rivett expressed remorse for his conduct in these terms:
What happened haunts me every day. I say sorry to [the victim] every day. I know he's got a family and that they'll be suffering forever because of this. I just couldn't believe that the angle he fell down to the ground ended up like that.
...
I'm extremely sorry. It was an accident: [the victim] knows and I know it was an accident - just two old drunks having a bit of a dig at each other. It started verbal and it became physical. I never held any aggro or wanted to punish him. There was no fear or stuff. It was just an instinctive reaction to hit him when he put his hands up and that's how it happened.
115 I should add that I take Mr Rivett's references to "accident" to mean that death was caused accidentally. He is not asserting that the punching was accidental.
116 Finally, Frances Ann Jansen (who is one of the daughters of Mr Rivett's former partner Sharon Jansen) wrote a character reference in which she said that it was clear to her that he "has realised the gravity of the mistake he has made which tragically led to the death of someone he knew".
Impact of traumatic early life on moral culpability
117 The fourth matter in mitigation urged by Mr Tiwana was that Mr Rivett was exposed to violence and alcohol abuse to such an extent in his early life that his moral culpability in committing this violent offence is less than it might be otherwise.
118 In a couple of long passages in his report, Mr Newton offered the following:[7]
[41] Mr Rivett is in a state of enforced remission from a very severe substance addiction. As noted above, he began drinking in his early teens and since then his life has been severely affected by the ravages caused by his substance use, including not only its direct effects but also the dysfunction and impoverishment of its associated activities. His substance use has been compulsive, he has developed tolerance to methamphetamine and alcohol, and he has suffered debilitating withdrawal symptoms when forced to abstain. On his own report, he has spent the vast majority of his time either intoxicated or engaged in the ceaseless round of activities needed to support his addiction. As a result, he has been unable to maintain even minimal engagement with normal activities. Thus, he was not able to complete his schooling and he has been able to sustain only limited paid employment in the community - being in receipt of disability payments for many years. Moreover, his relationships have all borne the effects of perennial substance abuse, being unstable and conflicted with recurrent allegations of violence from each of his partners. In recent years, even Mr Rivett's ability to sustain accommodation, nutrition and health care have all been seriously compromised. In turn, the long-term effects of this have seen him become increasingly alienated from mainstream society, as almost all aspects of his life have become subsumed by his addiction and its relentless demands. Even when provided with extensive support, flexible approaches to service delivery and repeated accommodations to his needs, he could not comply with even modest expectations with regard to his own rehabilitation or adaptive engagement with society. Mr Rivett has been unable to establish any but the most fleeting stability in his lifestyle. ... On his (plausible) report, such instability has dominated the majority of his adult years.
[42] Beyond these effects, Mr Rivett's psychological and emotional world has also been dominated by his drug use. While he has turned to substance use as a solace for his emotional problems, it has served only to entrench a morose despondency and generalised dysphoria. In yet another 'vicious' cycle, the more depleted he has become, the more he has turned to drugs and the more his emotional problems have been entrenched. Beyond this, he has become increasingly irascible and garrulous when intoxicated and this, combined with the entrenched effects of his own long-term exposure to family and other violence from a young age, appear to have been the key motive forces in his offending. Beyond this, the activities, beliefs and social engagement that would otherwise have defined his personality have gradually evaporated as his drug use and its effects have dominated his life.
119 In Bugmy v The Queen, in their joint judgment, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said this:[8]
[42] ... The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case.
[43] The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest ... that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
120 In 2018, the American singer-songwriter John Prine released "Summer's End".[9] It is a very moving and empathetic song about the ravages of substance addiction in the United States of America.[10] And yet it is a positive piece in that it holds out the hope of the addict's recovery with the assistance of family, or at least the prospect of some solace in merely having the care of loved ones. It starts in this way:[11]
Summer's end's around the bend just flying
The swimming suits are on the line just drying
I'll meet you there per our conversation
I hope I didn't ruin your whole vacation
Well you never know how far from home you're feeling
Until you watch the shadows cross the ceiling
Well I don't know but I can see it snowing
In your car the windows are wide open
Just come on home
Come on home
No you don't have to be alone
Just come on home
121 It is likely that one of the great impediments in life for the young Gary Rivett was that no-one was inviting him home to support him through detoxification or offering respite from the ravages of drug and alcohol abuse. He had no relief at school either. Shockingly, when he tried to escape his tormentors by attempting to hang himself, he was punished. No-one seems to have been providing him solace or assuring him that he did not have to be alone. Even if there were, having the experiences he did, including growing up in an environment surrounded by alcohol abuse and violence, I expect that his home was the last place to which he thought he could have turned for help.
122 In all the circumstances, I am satisfied that Mr Rivett does, to some extent, fall within the principles laid down by the High Court in Bugmy. (Ms Harper, I should add, accepted that these principles had application to Mr Rivett's case.) In particular, I think that his childhood exposure to extreme violence and alcohol abuse helps explain his recourse to violence when frustrated, such that his moral culpability for the inability to control that impulse is somewhat reduced.
123 None of this means that his moral culpability is reduced to nought. His moral culpability for his behaviour still must be significant. Instead, and consistent with the High Court's reasoning, it is simply reasonable to expect that a boy who is exposed to such violent and destructive ways would grow up to become a man who might consider resorting to such violence, as Mr Rivett has done in the past and did so in the present case, but without the usual wherewithal to refrain from doing so, which in turn reduces his moral culpability somewhat.
124 Equally, however, it is also important to recognise, as the High Court did in the last line of the passage extracted a moment ago, that the inability to control violent responses to frustration may increase the need to protect the community from the offender. I shall return to this (briefly) later, but, in this case, I think Mr Rivett's proven inability to refrain from violent behaviour must add to the importance of community protection as a sentencing purpose.
125 The fifth matter in mitigation concerns Mr Rivett's prospects of rehabilitation.
126 His co-operation with the authorities, early plea of guilty and remorse all point towards good prospects of rehabilitation. Further, he has remained drug-free in prison, has done the few courses available to him before the COVID-19 restrictions were imposed, has improved his diet and health significantly, and expresses a desire to maintain the abstinence he has achieved on remand. These are all positive indicators.
[45] During his interview with me, Mr Rivett expressed a desire to maintain the abstinence he has experienced since being placed on remand. He is aware that substance use has laid waste to the bulk of his life and said that he is determined that this will now change. While such sentiments are laudable, Mr Rivett could demonstrate only an intuitive understanding of the steps necessary if he is to achieve this goal. He has no developed sense of how to implement behavioural change, and has no understanding of either relapse prevention or 'harm minimisation' principles. Making matters worse, he could not outline any realistic plan for managing the emotional and practical challenges of life in the community without recourse to drugs or alcohol. His self-care skills are poor, his capacity to regulate his emotions is limited and his ability to implement problem-solving strategies is only marginally developed.
[46] In light of his persisting emotional challenges and his limited insight into his drug-related issues, Mr Rivett is likely to remain at elevated risk of relapse to substance abuse for some time. Like any prisoner with a history of substance addiction, the risk of relapse will be greatest at the time of his eventual release into the community. Given that such a relapse to substance abuse would constitute the single most important criminogenic risk factor in Mr Rivett's case, it is imperative that he receive appropriate treatment to address these issues and that he be subject to close monitoring whenever he is released into the community.
[47] Moreover, it is unclear if Mr Rivett possesses the necessary adaptive living skills to function effectively outside of a supported setting. While his placement in prison has reportedly seen a marked improvement in his mental and physical health, unless he can address his challenges with independent living skills there is some risk - particularly in the context of an extended period in prison - that Mr Rivett could become 'institutionalised'. At a minimum, he would be likely to require structured assistance to make a positive transition to life in the community at the end of any sentence which the Court may impose upon him.
128 While predicting human behaviour in years to come is perhaps a fraught exercise, given the foregoing, as well as his long history of violent (albeit much less serious) offending, his entrenched history of drug and alcohol abuse, his poor work history and generally poor life skills, I think that the most I can say of Mr Rivett's prospects of rehabilitation is that they are guarded and perhaps reasonable, at best.
129 Finally, I am satisfied that the hardship of imprisonment for Mr Rivett will be greater than usual for as long as the COVID-19 pandemic is operative.
130 From March this year, personal visits were suspended in Victoria's prisons, as were educational programmes and many recreational activities. Prisoners are kept "locked down" in their cells for far longer periods. Further, there is the ever-present feeling of vulnerability to contracting the virus in an environment over which the prisoner has no control.
131 Just how long the virus will remain a threat, or how long these restrictions will remain in prisons, is unknown. I think it is safe, however, to proceed on a timeline of the foreseeable future, as uncertain as that might be.
133 Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
General deterrence, denunciation and just punishment
134 In my view, general deterrence is an important sentencing purpose in this case. While the need for just punishment and denunciation is moderated on account of Mr Rivett's reduced moral culpability, they too are still important considerations in this case of manslaughter.
135 The community should understand that behaviour of the type engaged in by Mr Rivett is denounced by the courts and will result in a substantial term of imprisonment that reflects that a person's life has been taken by unlawful and dangerous behaviour and that, in this case, the lives of Mr Masterton-Bojang's loved ones have been marred forever in consequence.
Specific deterrence and protection of the community
136 I am satisfied that there is a need for weight to be accorded also to specific deterrence and protection of the community, particularly given Mr Rivett's long history of violent offending. On the other hand, that need is moderated to some extent by the fact that Mr Rivett co-operated with the authorities, pleaded guilty and is remorseful.
Rehabilitation and protection of the community
137 While I have assessed Mr Rivett's prospects of rehabilitation as guarded or reasonable, at best, I think that rehabilitation remains an important purpose in fixing sentence. There are at least two reasons.
138 First, that Mr Rivett has some prosects of rehabilitation makes rehabilitation a sentencing purpose that must be afforded weight.
139 Secondly, and despite my remarks about the need to give weight to protection of the community, I think it is important to recognize the interplay between rehabilitation and protection of the community in any event. Mr Rivett will be returning to the community ultimately. It is therefore in the community's interests that such prospects of rehabilitation as he has be maximized, and that he is not crushed, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into society are also as strong as they can be.
140 Section 5(3) of the Sentencing Act, relevantly, provides that "a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed". This provision reflects the common law principle of parsimony. It is an important principle, sometimes forgotten. I have applied this provision and this principle when considering the appropriate sentence in this case.
141 In so far as I can determine them, I have had regard to current sentencing practices for manslaughter.
142 Sentencing statistics show that, for the period from 2013-14 to 2017-18, prison sentences for manslaughter ranged from about one-and-a-half to twelve years' imprisonment; that the average (or mean) sentence ranged from about six years and eleven months' imprisonment in 2013-14 to nine years' imprisonment in 2017-18; and that the median sentence was eight years' imprisonment, as was the mode. During the same period, non-parole periods ranged from two years to ten years; the median non-parole period was five-and-a-half years; and the modal non-parole period was six to less than seven years.[12]
143 These statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations - such as the form of manslaughter, the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.
144 These statistics also support the view that sentences for manslaughter have increased significantly over the last couple of decades or so. Indeed, this is the type of case that today attracts a sentence as much as twice the length of the sentence it might have attracted 20 to 25 years ago.
145 Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. Counsel referred to three recent cases of manslaughter in which the deceased had been punched only once or twice and died in consequence.
146 First, in Vincec v The Queen,[13] Weinberg JA refused leave to appeal against a sentence of eight years' imprisonment with a non-parole period of five years imposed for manslaughter in the following circumstances.
147 The two protagonists began "chesting" each other over something as trivial as ill-feeling following Mr Vincec's treatment of Mr Walker's former partner and Mr Walker's failure to shake Mr Vincec's hand and then his use of an aggressive handshake. Cross words and a scuffle ensued during which others tried to intervene. At some point, Mr Vincec quickly reached around an intervener and punched Mr Walker once to his left cheek. Mr Walker immediately fell to the ground, hitting his head on the road. He was unconscious from that moment on and died six days later in hospital.
148 Mr Vincec ran away from the scene. Shortly thereafter, police intercepted him elsewhere. When first questioned, he denied having been involved in any fight. Soon after, however, when formally interviewed, he admitted to what he had done. Mr Vincec, who was aged 26, had prior appearances for offences of violence committed between the ages of 16 and 18, but none since. He had a history of using illicit drugs, but had a good job, a young family and very good prospects of rehabilitation. He pleaded guilty at an early stage and was remorseful.
149 In Weinberg JA's view, it was not reasonably arguable that the sentence was manifestly excessive.
150 Secondly, in Lee v The Queen,[14] the Court of Appeal (constituted by Ferguson CJ, Priest and Beach JJA) refused leave to appeal against a sentence of eight years' imprisonment with a non-parole period of five years imposed for manslaughter in the following circumstances.
151 Mr Lee (aged 33) punched Mr Cronin (aged 19) to the right side of his head near his right ear. When he did so, several men were brawling in the immediate vicinity. It is clear, however, that when he was punched, Mr Cronin was not involved in the fighting going on around him. Indeed, when he was fatally struck, he was attempting to pull one of his friends away from the fighting. He had not acted aggressively towards Mr Lee and had not provoked him. The blow struck by Mr Lee caused Mr Cronin to suffer an acute extradural haemorrhage leading to a brain injury from which he died.
152 Mr Lee was trained in Muay Thai (a martial art said to be reserved for situations of self-defence), but had a young family, a strong work history and no prior convictions. While initially he pleaded not guilty to manslaughter and a trial commenced, soon afterwards, he changed his plea to guilty and the prosecution withdrew an application for the imposition of a mandatory non-parole period of at least ten years under the so-called "coward's punch" provisions.[15]
153 The Court held that the sentence was not manifestly excessive.
154 Finally, only this year, in R v Nolan,[16] Taylor J imposed a sentence of seven years' imprisonment with a non-parole period of four-and-a-half years upon a plea of guilty to manslaughter in the following circumstances.
155 While sitting on a bench in a shopping centre, Mr Nolan (aged 36) and Mr Boothey (aged 51), who were unknown to each other, engaged in a heated verbal exchange. Mr Nolan left. A few minutes later, Mr Nolan again walked towards Mr Boothey (who was extremely drunk). Mr Boothey stood up and walked towards Mr Nolan, who took up a boxing stance with both fists held at chin height. Mr Nolan accepted that he had an intention to assault Mr Boothey from that moment. Mr Boothey also took up a boxing stance. Mr Nolan (who was also drunk) immediately threw a punch to Mr Boothey's face, which caused him to step back. Mr Boothey then moved towards Mr Nolan and pushed him back twice but stumbled as he did so. Mr Nolan stepped forward and again punched Mr Boothey to the face. The blow caused him to fall backwards and hit his head on the pavement. He died two months later.
156 In the immediate aftermath, while Mr Boothey lay motionless on the ground, Mr Nolan said that Mr Boothey deserved it and that he was not going to wait for the police. He then left the scene with his partner. Ultimately, he was arrested by police after running through the carpark. He told them that Mr Boothey had "got in [his] face" and was drunk. He said that he acted because he felt Mr Boothey was going to swing at him.
157 Mr Nolan had a serious criminal record, including for violence. He had a tragic childhood, which, the judge found, appreciably reduced his moral culpability. He also suffered serious interlinked psychological, psychiatric and cognitive difficulties, including an IQ of only 61.
158 Mr Rivett's assault (involving four punches) seems to be a little worse than those involved in these three cases, which all involved the one blow (although Mr Nolan's was preceded by an earlier punch that appears to have had no meaningful effect). Neither Mr Vincec nor Mr Lee had any prior convictions, whereas Mr Rivett has a long history of violent offending. Mr Nolan's violent history may have been worse than Mr Rivett's, but he had an extremely dysfunctional childhood, even more tragic than Mr Rivett's, and he also suffered from several other serious afflictions. Indeed, it might be said that the relatively low sentence imposed on Mr Nolan is explained in large part by the existence of his unusual combination of grave afflictions. Both Mr Vincec and Mr Lee had far more impressive and promising prospects of rehabilitation than Mr Rivett. Overall, my impression is that Mr Rivett's case requires a sentence heavier than those imposed on Messrs Vincec, Lee and Nolan.
159 It is possible to make more nuanced comparisons between the foregoing three cases, the present case and others. But, in the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. None of those I considered was quite the same as the present case. And, in any event, sentences are not precedents to be applied or distinguished.
160 Nevertheless, I have found the other sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for manslaughter, particularly where the deceased is killed by an assault similar to that which Mr Rivett perpetrated in this case, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors.
161 In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the circumstances of this case and sentencing principles to arrive at the appropriate sentence for this offence of manslaughter.
164 Balancing all matters as best I can, I have concluded that, for the manslaughter of Mr Masterton-Bojang, Mr Rivett will be convicted and sentenced to nine years' imprisonment with a non-parole period of six years.
165 I have fixed a non-parole period that allows for a substantial period upon parole. The prison authorities should ensure that Mr Rivett is offered the types of rehabilitative programmes suggested by Mr Newton. Despite the COVID-19 pandemic, ways must be found to ensure such programmes are provided. Prisoners must not be warehoused. As Mr Newton opined, Mr Rivett is at risk of being institutionalised. That is in no-one's interests. If Mr Rivett is exposed to the appropriate programmes, his positive approach thus far suggests that it is likely that he will work towards his earliest possible release upon parole. If that aim is achieved, he then should be supervised for a substantial period within the community upon his release. If that approach is taken and those aims are achieved, this should redound to the benefit of both Mr Rivett and the community in the longer run.
166 Pursuant to s 18 of the Sentencing Act, I declare that, including today, 259 days of pre-sentence detention be reckoned as served under this sentence.
167 Finally, pursuant to s 6AAA of the Sentencing Act, I declare that, had Mr Rivett pleaded not guilty but been found guilty following a trial, I would have imposed a sentence in the order of (at least) eleven years' imprisonment with a non-parole period of eight-and-a-half years.
[1] This summary is taken principally from the Prosecution Plea Opening but also in part from other sources, including the depositions, the victim impact statements, defence exhibits and the submissions of counsel.
[2] In recent times, the notion of dangerousness, for the purposes of the common law concept of manslaughter by unlawful and dangerous act, has been modified by s 4A of the Crimes Act 1958 (Vic), but only when particular circumstances prescribed within the provision are established.
[3] See s 5 of the Crimes Act 1958 (Vic).
[4] The punching might have been taken to be dangerous by operation of s 4A of the Crimes Act 1958 (Vic). However, since I did not understand the point to be raised on the hearing, I shall say no more about it.
[5] See R v Jagroop [2009] VSCA 46; (2009) 22 VR 80 at 90[63]-91[69] (per Weinberg JA; Williams AJA agreeing at 92[75]).
[6] See, for example, DPP v Bourke [2020] VSC 130 at [32] (per Jane Dixon J); R v Nolan [2020] VSC 416 at [39] (per Taylor J).
[8] Bugmy v The Queen (2013) 249 CLR 571 at 594-595[42]-[44] (my emphasis).
[9] He wrote it with Pat McLaughlin in Nashville. It is from the album The Tree of Forgiveness.
[10] While the official video depicts a young mother who ultimately dies as a result of her substance abuse and the resulting grief endured by her father and her daughter, it is of course a story of universal application. A modest man, John Prine once said, "It's just a pretty song - it might drive you to tears - but it's just real pretty" (NPR Music Tiny Desk Concert, 20 March 2018). If the remarks of those who have seen and heard the video on the internet are anything to go by, it has had that effect - and quite a bit more.
[11] Sadly, John Prine died in April this year. He was one of the early victims of the COVID-19 pandemic in the United States.
[12] Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 224, April 2019, pp 3-5.
[13] Vincec v The Queen [2018] VSCA 18.
[14] Lee v The Queen [2018] VSCA 343.
[15] See s 9C(2) of the Crimes Act 1958 (Vic).
[16] R v Nolan [2020] VSC 416.
R
Rivett [2020] VSC 563
(2009) 22 VR 80
(2013) 249 CLR 571