R v Twomey [2025] VSC 529

1 Tragically, on the evening of 18 January 2024, John‑Paul Cairns died in his home in Portland. Notwithstanding Mr Cairns had suffered head and facial injuries on at least three unconnected occasions in the days prior, Marcus Twomey accepts that his death resulted from an unlawful and dangerous assault perpetrated by him, albeit in confused and drunken circumstances of excessive self‑defence.

2 Because he saw Mr Cairns looking battered about, Mr Twomey had gone to his home at around lunchtime to check on his welfare. Together, they drank heavily all afternoon. In the evening, out of the blue, Mr Cairns attacked his guest. While Mr Twomey defended himself, he ended up going too far, punching Mr Cairns twice to the head, which caused him to fall to the floor and ultimately die. Recognising he was in a very bad way, Mr Twomey used his phone to conduct internet searches on how to call triple‑zero, which itself gives an indication of his addled state. When that failed, Mr Twomey, with his face, hands and clothes covered in blood, went next door and told a neighbour Jeremy Moore, "You better come ... ; there's someone dead." Mr Moore, who happened to be a nurse, did as he was asked, and, with an emotional and crying Mr Twomey in tow, found Mr Cairns lying on his back, deceased, in the front living area of his home. He then rang triple‑zero.

3 When police arrived soon afterwards, they arrested Mr Twomey. He was too drunk to be interviewed, even hours later. Subsequently, he was charged with murder. He has remained in custody ever since.

4 On 17 April 2025, at a sentence indication application supported by the Director of Public Prosecutions ("the Director") on the alternative charge of manslaughter, I indicated that, if Mr Twomey pleaded guilty to that offence, I would impose a sentence not exceeding seven years' imprisonment with a non‑parole period of four years. Subsequently, the Director filed a fresh indictment charging Mr Twomey with manslaughter,[1] to which he pleaded guilty on 1 May 2025.

5 At the plea hearing on 1 August 2025, I heard a detailed prosecution opening, and received heartfelt and compelling victim impact statements from Mr Cairns' parents and two of his siblings. Then I heard a plea in mitigation on behalf of Mr Twomey, during which I received a psychological report and character references. I also heard submissions from counsel, supplemented by written submissions, on various relevant considerations.

6 It is now my task to impose sentence. As is the way of things in cases of this nature, there are numerous considerations pulling in different directions, some more powerfully than others. For example, on the one hand, Mr Twomey's offence resulted in the violent death of Mr Cairns in his own home. Naturally, his family are devastated. Further, while sentences for manslaughter vary widely, the offence carries a heavy maximum penalty of 25 years' imprisonment.[2] This reflects, among other things, the law's recognition of the sanctity of human life and the profound victim impact that inevitably flows from the death of a loved one in circumstances amounting to a crime. General deterrence, curial denunciation and just punishment are important sentencing purposes in cases of this kind. These matters all conduce to a heavier sentence.

7 On the other hand, several matters pull in the other direction. The Director accepts that this was an instance of manslaughter in the lower‑to‑mid‑level range of objective gravity, whereas Mr Twomey's counsel puts it at the lower end. There are also significant mitigating factors, including the following. Mr Twomey has pleaded guilty despite having arguable defences as to self‑defence and causation. He is genuinely remorseful. At the age of 47, he has a very limited and irrelevant criminal history. He has strong family support, a solid employment history, a low risk of recidivism, and very good prospects of rehabilitation. In these circumstances, rehabilitation is another sentencing purpose of importance. Further, because of his major depressive disorder and anxiety, he has found, and will continue to find, imprisonment harder than those without those afflictions. Further, there is a substantial risk of notable deterioration in his mental health while in custody.

8 Balancing these and all other relevant considerations as best I can, I have determined that it is necessary and appropriate to impose a lesser sentence than I indicated earlier. I shall announce that sentence at the conclusion of this judgment. My more detailed reasons follow.

Summary of circumstances of, and surrounding, offending

9 I shall commence with a summary of the circumstances of, and surrounding, the offending. This summary is taken from a combination of sources, including the prosecution opening read to the Court by Mr Porceddu, who appeared for the Director, the depositions,[3] a report by psychologist Austin Campbell,[4] and matters raised on the plea by Mr Cronin, who appeared for Mr Twomey.

10 At the conclusion of this summary, I shall indicate some important findings of fact that I have made about the events concerning this offence.

11 John‑Paul Cairns was born on 26 January 1979. He was therefore 44, nearly 45, at the time of his death. He was the fourth of five children to Mary Hallam and Geoff Cairns. His parents are divorced and live in separate premises in Portland.

12 Mr Cairns resided in Portland his whole life. At the time of his death, he was living by himself at his home in [redacted] Street. His mother had lived there with him previously, but she had moved out in 2023.

13 Mr Cairns' life had become relatively isolated. He experienced periods where he struggled with alcohol abuse and occasional bouts of mental ill‑health.

14 Marcus Twomey was born on 21 March 1978. He was therefore 45 at the time of the offence, and is now 47. He is the second of five children to his parents. He and his ex‑partner Catherine Edwards have three children, two of whom are still school‑aged.

15 Other than a short period in Ocean Grove when he was only five, Mr Twomey has also resided in Portland his whole life. He left school at fifteen. He has worked in various occupations, including on fishing trawlers, in forestry, as an arborist, and in farming, as well as being a full‑time father for several years.

16 Like Mr Cairns, he drank alcohol to excess and suffered poor mental health at times. I shall return to these and other personal matters later.

17 On 18 January 2024, just before 10:00 a.m., Mr Cairns went to his local IGA supermarket and bought a bottle of Absinthe and six cans of pre‑mixed whiskey and cola.

18 Mr Twomey told the psychologist Mr Campbell that, the same morning, he saw Mr Cairns from afar at the IGA. Mr Twomey recognised him because he used to see him around when he (Mr Twomey) lived with Mr Cairns' brother some years earlier. He noticed the injuries Mr Cairns was sporting as a result of the incidents in the previous days - about which I shall say more in a moment. Later in the morning, he decided to go to Mr Cairns' house to check on his welfare. He was familiar with the residence because he had assisted Mr Cairns' mother with maintenance work there in the past.[5]

19 When Mr Twomey arrived, Mr Cairns asked him to stay for a drink. Mr Twomey then went home briefly to feed his dog, and he walked back to Mr Cairns' house with some alcohol.[6]

20 Mr Cairns' mother called in to visit him around 12:30 p.m. or 1:00 p.m. Mr Twomey was already there at that time. She observed the two men to be talking normally together and sharing a drink of whiskey. She stayed for a short period and then left them at the house.

21 During the afternoon, Mr Cairns told Mr Twomey of a recent break‑in to his home and of fighting with his nephew, which had resulted in physical injuries. The two men consumed a large amount of alcohol, although Mr Twomey cannot remember precisely how much. However, he recalls feeling highly intoxicated.[7]

22 From 5:07 p.m., Mr Twomey began to send numerous Facebook messages to his daughter, Ashli Twomey. For example, at that time, he said: "I want to go to ukraine and fight with them against russia can u help me"; "Ive found ppl that will help me"; and "I need help getting there".

23 Between 5:12 p.m. and 5:13 p.m., he said: "I wanna go to ukraine and help them just trying to get there;" "I don't know but im trying to get there i wanna help them [followed by a thumbs up emoji]"; "Ive found ppl that will arm me i just have to get there"; "I can do this"; and, "I can really do this ash".

24 Between 5:43 p.m. and 5:59 p.m., his messages included the following: "I'm gonna dim mak tha fuck out of russia [then another thumbs up emoji]"; "I need to be in ukraine"; "Like seriously ukraine needs me"; "I've found ukraine that will support me so just trying to make it happen"; "Guys are gonna get me there"; "Its happening" [another thumbs up emoji]"; "Hopefully [then yet another thumbs up emoji]"; "I think ive met the right guys and im gonna get there"; "Can u help me get to ukraine"; "I need help getting there"; "Might be the best thing i ever do and i need help"; and "Help me get to ukraine".

25 Mr Twomey told Mr Campbell that he had no memory of sending these messages to his daughter. He believes this was because of his intoxication. He denied any intention to travel to Ukraine and was unable even to speculate as to why he sent those messages.[8]

26 At 6:06 p.m., Mr Twomey replied to SMS messages which had been sent three days earlier, on 15 January 2024, from Sureway Health and Wellbeing. He said: "Im never OK and i seriously need help"; and "Help me pls".

27 Mr Twomey told Mr Campbell that the events leading to Mr Cairns' death occurred in the following way.

28 Mr Twomey was preparing to leave the house. However, Mr Cairns had left the room, and he was unsure of where he had gone. He recalled sitting on the back of the couch, on the frame, waiting for Mr Cairns to return, as he did not wish to leave without telling him he was going. He then felt himself being pulled off the couch, and a scuffle broke out between him and the person who grabbed him. He maintained to Mr Campbell that he was uncertain of the identity of the person at this time, which is consistent with the remarks he made to the neighbour Mr Moore subsequently, which I shall come to shortly. He recalls wrestling with the individual and trading some blows. They separated for a moment, and Mr Twomey told him to "stop fighting". He told Mr Campbell that the other man then came towards him, and he remembered throwing two punches towards his head, which connected, and then the man fell to the floor.[9]

29 Mr Twomey said that, to catch his breath, he left the house to sit on the steps outside the front door. He denied punching the other man again following the two punches that resulted in him falling to the floor.[10]

30 When reflecting on his offending behaviour to Mr Campbell, Mr Twomey attributed his actions as efforts to defend himself from an unknown attacker. He spoke of feeling confused and concerned for his safety at the time of the offence. He maintained he was not aware of the identity of the man throughout the conflict. He told Mr Campbell that the conversation between Mr Cairns and him had been cordial and respectful prior to his leaving the room before the offending. Mr Twomey said to Mr Campbell that he felt sorry for his actions but continued to perceive his behaviour as an attempt to defend himself.[11]

Events immediately after the death of Mr Cairns

31 Following the text message at 6:06 p.m., there was consistent use of Mr Twomey's mobile phone until about 8:00 p.m., except between 7:00 p.m. and 7:20 p.m. At 7:21 p.m., Mr Twomey made a Google search on his mobile phone browser for "000", and his phone accessed a website "Triple Zero" and a web page on "How to Call 000". Given those matters and also that he went next door to Mr Moore's home at around 7:25 p.m., to which I shall turn presently, I am satisfied that the events that led to Mr Cairns' death occurred at some point between 7:00 p.m. and 7:20 p.m.

32 I should add that Mr Twomey told Mr Campbell that he also attributes his inability to contact emergency services to his level of intoxication.

33 So, as I said, at about 7:25 p.m., Mr Twomey went to the next house and knocked on the front door, which was answered by Jeremy Moore. He said to Mr Moore, "You better come next door; there's someone dead." Mr Moore asked who the dead person was, and Mr Twomey replied, "I don't know, I've never seen him before."

34 Mr Twomey led Mr Moore to Mr Cairns' home, through the back door and into a back living area. When asked by Mr Moore where the dead person was, Mr Twomey responded, "I don't know." The two men walked to the front living area, where Mr Moore saw Mr Cairns lying on his back. Mr Moore, who is a nurse, noticed him to have a substantial amount of facial swelling, and that there were smears of blood on the carpet. He also determined that Mr Cairns was deceased.

35 Mr Moore again asked Mr Twomey what had occurred, and he replied, "I don't know who he is. I was visiting John‑Paul. This other bloke just came in." He said that John‑Paul had facial injuries but had "shot through".

36 At 7:33 p.m., Mr Moore rang tiple‑zero. At 7:39 p.m., police arrived. And at 7:47 p.m., ambulance officers arrived and determined that Mr Cairns was deceased.

37 Police arrested Mr Twomey. While outside the house, he said the following to police:

I don't actually remember what happened. Like, I was just sitting here with John and this guy turned up (pointing to the house) and I don't remember what happened. I really have no - I can't remember what happened. I don't know where John is. I came around to see John because he had some facial injuries, like, I saw him, and he had been in a fight. So I came around to see if John was okay. And we were just sitting there having a drink, and I don't know where this guy (gesturing towards the house) even came into it.

38 All the while, Mr Twomey had blood on his face, hands and clothing. Police seized Mr Twomey's jumper, pants and shoes, each of which had blood on them.

39 Both of his hands were covered in blood. His right hand was injured and swollen, with multiple abrasions across the fingers. Blood splatter was also observed across Mr Twomey's face.

40 DNA testing indicated that the blood located on Mr Twomey's clothing, hands and under his fingernails originated from Mr Cairns.

41 Mr Twomey was too drunk to be interviewed formally, even in the early hours of the next morning. He was charged with murder.

42 The next day, on 19 January 2024, members from the Major Crime Scene Unit conducted an examination of Mr Cairns' home. They seized a blood stained purple guitar from the lounge room between Mr Cairns' body and the front door, a blood stained yellow guitar from behind Mr Cairns' body, and hairs from the yellow guitar.

43 DNA testing of these items confirmed the blood and hairs originated from Mr Cairns.

44 Several "Wild Boar" brand pre‑mixed alcohol cans were found in the lounge area. Three of these cans were found to have Mr Twomey's fingerprints on them.

45 On 20 January 2024, forensic pathologist Dr Paul Bedford conducted a post‑mortem examination on Mr Cairns.

46 Among other things, Dr Bedford observed the following:

d) extensive bruising to the face, and especially the left cheek and neck;

47 Dr Bedford described the cause of death as "traumatic brain injury in the setting of a raised blood‑alcohol".

48 In the days before the offence, Mr Cairns suffered injuries to his face and head in separate incidents.

49 On 6 January 2024, Mr Cairns fell from his pushbike while drunk. He hit his head and was bleeding from his right eyebrow, but refused police assistance.

50 On 15 January 2024, police were called for a welfare check on Mr Cairns in Henty Street in Portland. He was found with a laceration to his forehead and other noticeable injuries to his face, including one eye being closed over and an abrasion over his left eyebrow. These injuries can be seen on the body‑worn camera footage of police who attended to him. It was concluded that Mr Cairns had been drinking and had fallen into the back of a parked vehicle.

51 The next day, on 16 January 2024 - i.e. only two days before Mr Twomey's offence - police attended at Mr Cairns' home. They heard him falling over several times inside the house. Once he managed to crawl to the front door, he was observed by police through the screen door to have significant swelling and bruising to his right eye, and he was barely coherent. Again, his injuries can be seen on body‑worn camera footage of police at the scene. He was taken to hospital by ambulance for a CT scan but left prior to receiving the results. The facial scan showed a fracture to his nose, but no orbital, maxillary or zygomatic fractures. The cerebral scan revealed no cerebral, ventricular or subarachnoid abnormalities.

52 However, in evidence at a subsequent pre‑trial hearing, forensic pathologist Dr Linda Isles opined that a CT scan would not pick up the diffuse axonal injury observed in Mr Cairns' brain upon microscopic examination after the autopsy. Further, after the foregoing pre‑existing injuries were described to her, Dr Isles opined that the injury to the brain she observed under microscopic examination could be consistent with head injuries sustained a day‑and‑a‑half or so prior to his death. She added that she would not be able to tell the difference - meaning as to whether what she observed occurred the day of his death or one‑and‑a‑half days or so earlier.

53 There is also evidence that, on 17 January 2024, Mr Cairns attended the local hospital before 10:00 a.m. in relation to a possible overdose. He said he had taken two days' worth of medication. He was hypertensive, and he had severe acute kidney injury and hypocalcaemia. He was discharged in the early hours of 18 January against medical advice, which, Dr Bedford explained in a pre‑trial hearing, included that he was at risk of low blood pressure, renal dysfunction, seizures, coma, and death.

54 Next, I turn to the evidence of things said by Mr Twomey in calls from prison to his ex‑partner Catherine Edwards and his daughter Ashli.

55 On 29 January 2024, at 10:19 a.m., during a call to Ms Edwards, Mr Twomey said the following:

I want him to know - I'm not a murderer. You know what I mean. Like, he, I don't know what's wrong with John‑Paul but he just lost it. And I fought back, and I did - I went overboard, obviously. But you know, I'm not a murderer. Things aren't going to be as bad as they seem.

I'm telling you I was just sitting there, and he just went nuts - and I just lost it. I just, I am so sorry for what happened like - to all of you. I know I need to pay for this because I think I overreacted but it's not how it ... might seem - I am not a horrible murderer.

56 On 8 February 2024, at 3:39 p.m., during a call to his daughter Ashli, he said these things:

I can't do anything - me hands are just really jacked because of what happened. And I have a broken bone in me foot. I haven't been real well. I can't walk or put much pressure on me foot for long and I can't do anything with me hands.

Me hands won't be good for about six weeks, and me foot probably even longer. It's not broken; it's just fractured.

I'm not a murderer, Ash. I had no choice. What - whataya do when someone attacks ya? You've got no way of getting out. I kept saying - I said - I don't even know how many times, stop fighting. I was telling him to stop. Like I wanted him to stop. You know what I mean? And it's just sad that he didn't, cause I had no choice but to fight back. And that's what happened. If I hadn't have fought back, I would have been the victim on the floor. But you know me, I'm not a violent person.

57 Finally, on 9 February 2024, at 11:10 a.m., Mr Twomey said the following to Ms Edwards:

I find the whole thing a bit unbelievable - like, what else was I meant to do? I don't know if you have ever met people on methylamphetamines but they are fairly aggressive. I said stop, I don't even know how many times I said, "Stop fighting." And he was not gonna stop. He literally gave me no choice, sort of thing.

58 In the same call, Ms Edwards asked, "What started it? Was he just going off for no reason?" Mr Twomey replied in this way:

He just grabbed me from behind. I'm not meant to be talking about this but I don't really give a shit. Like what are they gonna do? He was between me and the door and he just would not give me - like, I just kept saying, like, stop. Like, he just wasn't - I don't know how to explain it to you. He literally had been fighting his own nephew - I think it was literally the day before. Like, he was an absolute mess, almost unrecognisable. That's why I went there - to make sure he was okay.

59 I turn now to some key findings of fact. In short, I am satisfied of the following matters concerning the circumstances of Mr Twomey's offence.

60 Mr Twomey and Mr Cairns were rotten drunk. Without warning, and only goodness knows why, Mr Cairns grabbed Mr Twomey from behind. Mr Twomey then sought to defend himself, during which time he wrestled and traded blows with Mr Cairns. He told Mr Cairns to stop, but he did not do so. As Mr Cairns came towards him, Mr Twomey punched him twice to the head, causing him to fall to the floor. He did this believing it was necessary to defend himself from further attack, but he accepts that he "over‑reacted" and went "overboard", which was not a reasonable response in the circumstances as he perceived them.[12]

61 I am also satisfied that, in his drunken and confused state, Mr Twomey thought Mr Cairns was an intruder, but he now accepts, as he must, that there was no intruder: it was only ever Mr Cairns.

62 I turn now to the victim impact statements filed by Mr Cairns' family.

63 Mrs Hallam held a photo of her son throughout the plea hearing. She was so overcome as to be visibly shaking when reading her statement. It was distressing to watch, and gripping. Her world collapsed when she heard her precious son was dead. She misses everything about him, including his gentle smile, his contagious laughter, his music, his smell. She lives with the devastation, guilt and heartache as a result of feeling, as all parents do, that she might have done more to protect him. But, of course, there was nothing she could have done. As she said, no mother should have to go through such trauma.

64 Geoffrey Cairns misses his son dearly. He thinks of him often. When he hears a guitar playing, it reminds him of John‑Paul. He has many unanswered questions about how he died, which continue to play on his mind. He said that, as parents, we are not supposed to outlive our children, but he has buried two now.

65 Josephine Hildebrand is so sad that she never got to say goodbye to her brother. She replays their last time together repeatedly in her mind, but she can't recall whether she hugged him. She feels she let him down, and continues to think, "What if?" She misses him terribly.

66 Mark Cairns finds his brother's death especially troubling because he regarded Mr Twomey as his best friend for a large portion of his life. He thinks he may have been closer to him than he was to John‑Paul back in those days, but his big brother had become his best friend in recent years. They would see each other three or four times a week. He is angry often, and his enjoyment of life is gone.

67 I find these sentiments, and the many others in the victim impact statements, profoundly moving. They express the immeasurable hurt and loss felt as a result of the manslaughter of their loved one. In so far as the law allows, I have taken these statements into account in considering sentence.

68 I wish to add this. I expect that no sentence this Court could pass would lessen the grief or ease the pain of Mr Cairns' loved ones. The sentence to be imposed is not a measure of his life or its worth. It cannot be. Instead, it is a product of the many and varied factors that the law requires me to synthesise and take into account, only one of which is the impact on victims.

69 I turn now to the nature and gravity of manslaughter generally and this offence in particular, including Mr Twomey's level of culpability.

70 Manslaughter in this State is (mostly) a common law offence.[13] As I indicated earlier, it carries a maximum penalty of 25 years' imprisonment.[14]

71 While manslaughter is one of the more serious crimes known to the law, the circumstances of the offence and the offender, and the resulting sentences, vary widely.

72 The form of manslaughter relied on here is manslaughter by an unlawful and dangerous act. The punching of Mr Cairns was unlawful because the last two of those punches involved an intentional assault without lawful excuse. It was also dangerous because a reasonable person in Mr Twomey's position performing those acts would have realised that there was an appreciable risk that Mr Cairns would suffer serious injury.

73 Mr Twomey's offence had some serious features about it, including the following:

74 First, every offence of manslaughter has a grave component in that, by definition, the life of another has been lost in circumstances amounting to a crime. The law must maintain a special concern for the sanctity of human life.

75 Second, here, the life of a beloved son and brother, aged only 44, has been taken as a result of unlawful and dangerous conduct. As is apparent from the victim impact statements, the loss suffered by his family is incalculable.

76 Third, the offence occurred in Mr Cairns' own home, where he was entitled to feel safe.

77 Fourth, Mr Cairns was punched more than once to the head, which is a vulnerable area of the body.

78 The foregoing matters must be weighed against factors limiting the gravity of this instance of manslaughter, which include the following:

79 First, Mr Porceddu accepted that it cannot be established how many blows were inflicted. That is so on the medical evidence, but, as I have indicated, I also accept Mr Twomey's account of the events, and it is only the last two blows that can be said to have been delivered without lawful excuse.

80 Second, Mr Porceddu also accepted that it is relevant that both men had been drinking excessive amounts of alcohol and were heavily intoxicated at the time. Indeed, I accept that Mr Twomey's drunkenness is likely to have impaired his perception of the ferocity of his blows and the need for them in the first place.

81 Third, Mr Porceddu accepted that Mr Cairns' high blood‑alcohol level adversely impacted upon his traumatic brain injury. Thus, were he not so drunk, he might not have died. That is consistent with the medical evidence of Dr Bedford. In that sense, both Mr Cairns and Mr Twomey may be regarded as unlucky. On the other hand, it might be said that to assault someone so drunk is to court a heightened risk of harm. But, if that be correct, it must be, I think, offset by the reduction in moral culpability stemming from Mr Twomey's impaired perception and thinking as a result of his extreme intoxication as well.

82 Fourth, Mr Porceddu submitted that it is relevant that Mr Cairns had a number of medical issues, including pre‑existing injuries at the time of his death suffered as a result of alcohol‑related incidents in the days leading‑up to the offence. This evidence, he accepted, gave rise to issues with respect to causation. While this may go to an element of misfortune for both Mr Cairns and Mr Twomey, it might also be said that to punch a man who is already obviously injured is, again, to court a heightened risk of further harm. Again, though, Mr Twomey's impaired perception must ameliorate that possible consideration as well. In the end, I think this issue about causation is of more significance when assessing the weight to be given to Mr Twomey's plea of guilty than it is to the objective gravity of the offence.

83 Fifth, it is significant that no weapons were used in the assault. On the evidence I accept, it was only fists.

84 Sixth, and relatedly, I accept that there was no gratuitous assault upon Mr Cairns once he had fallen to the floor, which sometimes happens in violence‑related offences, including homicides.

85 Seventh, in my view, most important in assessing the gravity of this offence is my acceptance of the proposition that this is a case of excessive self‑defence, and a finely balanced one at that. As I have said, I accept that, at the time of punching Mr Cairns, Mr Twomey believed that it was necessary to do so in self‑defence. However, by his plea of guilty, and consistent with part of what he said in the phone calls about "over‑reacting" and going "overboard", he also accepts that his last two punches were not a reasonable response to the threat he faced. In my view, this aspect of the offence places Mr Twomey's moral culpability at a substantially reduced level.

86 Eighth, and again relatedly, I accept that it is significant that Mr Twomey did not start the fight. Instead, it was started by Mr Cairns. Thus, there was, and could be, no premeditation by Mr Twomey.

87 Ninth, given Mr Twomey's account, I accept that the assault was of short duration, ending in a matter of seconds.

88 Tenth, while this may be a matter more properly considered under mitigating factors, after failing to be able to ring emergency services in his drunken stupor, Mr Twomey sought help from Mr Moore next door. Further, he remained at the scene and was co‑operative with police.

89 Mr Porceddu submitted that, when all matters are balanced, the objective gravity of the offending should be assessed as falling in the "lower to mid range". Mr Cronin, partly in contrast, submitted that this was a "low range example of ... manslaughter".

90 In so far as labels of those kinds might be thought to be apt, or to matter, I think that Mr Cronin's submission is closer to the mark. Put another way, in my opinion, while the offence is serious by definition - because, after all, a man has died as a result of an unlawful and dangerous act - this is a substantially less serious instance of manslaughter than is commonly seen in practice.

91 Before addressing the matters in mitigation, I shall say something more about Mr Twomey's personal history, commencing with his family background.

92 Mr Twomey's mother Deborah lives in Portland and works in aged care. His father Paul lives in Warrnambool and drives a taxi. His parents separated about 30 years ago.

93 Of his four siblings, only one is still alive. Rebecca was 49. She lived in Portland but did not work because of issues with drug and alcohol. Sadly, she died only recently as a result of a drug overdose. Glenn is 44. While he lives in Cranbourne, he and his brother share a close relationship. His other two siblings have passed away, as well. Rachel was only 21 when she died in a car accident. And Andrew died at 43. He suffered from drug addiction.

94 Mr Twomey is still close to both of his parents, but particularly his mother. She owns an 80‑acre farm that was left to her by her parents. Mr Twomey was living on that farm and looking after the 50 cattle they own. He had been undertaking this role for the last five years prior to his arrest. Since his incarceration, his mother has had to pay other people to look after the cattle and do the work on the farm that Mr Twomey used to do. He is conscious of the pressure that this has placed on his mother.

95 As for his education, Mr Twomey went to MacKillop Primary School, and then Portland Technical School up until Year 8, when he left to pursue work on fishing boats.

96 In a fishing town, after leaving school, he quickly found work on a trawler, spending days away at sea. His role was to empty the fish from the nets and sort them into different boxes. The work was hard and the hours long, operating in an often wild and rugged ocean far off a particularly unfriendly coastline that has claimed many vessels over the years.

97 After about six years on the trawlers, Mr Twomey changed roles, starting in forestry. He planted blue gums and pine trees in the areas surrounding Portland, and qualified as an arborist. He worked in forestry for about six or seven years.

98 His next job was with Powercor, trimming trees underneath the powerlines.

99 At the time of the offence, Mr Twomey was doing part‑time work for a local farmer, trimming trees on his farm, and was also in receipt of Centrelink benefits.

100 Mr Twomey has worked consistently since he left school in Year 8. The only time he has had extended periods off work has been as the result of workplace injuries. The most serious injury involved two ruptured discs that required surgery and two years off work.

101 Mr Twomey started drinking alcohol when he was aged twelve. His first drink was a can of beer that had been quietly taken from his father's fridge and which warmed in his school bag by the time he drank it with his friends.

102 Drugs have not been a problem for Mr Twomey. He has tried cannabis on a couple of occasions but didn't like it, and he has not had the urge to try any other drugs.

103 His drinking increased significantly when he started working on the fishing trawlers, but not so much while they were at sea and working. Once the course was set for home, moderation was left behind.

104 That pattern of drinking, working long, hard hours, and then drinking at the end of the day, is something that stuck with Mr Twomey throughout his working life. He would classify himself as an alcoholic. His time on remand represents the longest period of sobriety since he was thirteen.

105 Mr Twomey has had one significant relationship, with Catherine Edwards. They were together for about fifteen years before they broke up about seven years ago.

106 During their time together they had three children. Ashli Twomey is 22. She lives in Portland and works as a hotel concierge. Prior to his remand, Mr Twomey would see her weekly. He has spoken to her every couple of weeks while in custody.

107 His second daughter is seventeen. She is currently in Year 12, and lives with her mum in Portland. She would spend overnight time with her dad prior to his arrest. They have only spoken a few times while he has been in custody as he is conscious of the significant extra pressure his remand has placed on her when she is already under significant pressure during her final year of schooling.

108 His son is thirteen. He lives with his mum in Portland, and is at school. He too would come and stay with his dad prior to his remand. He would ride his motorbike on the farm and follow his dad around. Mr Twomey has spoken to his son only a few times since he has been in custody as he is concerned about the impact his incarceration has on him.

109 As for his mental health, Mr Twomey has seen a psychologist and a psychiatrist over the years, including having in‑patient stays, in relation to depression. In the past, he had ECT, and he has had prescriptions for Sertraline and Fluoxetine.

110 In his psychological report, Mr Campbell opines that Mr Twomey's mental health was impacted by a number of issues at the time of the offending, including ongoing grief from the passing of his brother. His drinking had increased, and he reported a depressed mood. In Mr Campbell's opinion, at that time, Mr Twomey appeared to be experiencing a major depressive disorder with anxious distress and an alcohol use disorder.

111 Overall, on testing, Mr Campbell assessed Mr Twomey's risk of future violence as being low due to the limited presence and weight of relevant risk factors. I accept this opinion.

112 Mr Campbell also observed that Mr Twomey reported persistent symptoms of depression throughout his period of incarceration, and limited engagement with mental health supports. Upon testing, his levels of depression in custody have been "extremely severe".[15] In Mr Campbell's opinion, Mr Twomey's depressive symptoms are "likely to make any period of incarceration more difficult due to the resulting impacts of his functioning", and "[t]his may result in daily issues with engaging in positive, goal directed behaviours, as well as increase his risk of periods of notable mental health deterioration".[16]

113 Mr Twomey has a limited criminal history. His only prior convictions relate to an ex‑parte hearing in the Portland Magistrates' Court in 1996 for being drunk in a public place, behaving in an offensive manner in a public place, and aggravated littering, for which he was convicted and fined $600.

114 He has had two further court appearances. In 2021, he was fined $300, without conviction, for unlicensed driving.

115 In 2023, he was fined $800, without conviction, for persistently breaching a family violence intervention order, with a note "to continue treatment as required". The breaches were constituted by contact with a former partner, not by violence, in circumstances where he believed the order had been revoked.

116 As for his time in custody, when arrested, Mr Twomey was taken to the police cells in Warrnambool and kept there for the weekend. He was then moved to Metropolitan Remand Centre where he has remained.

117 He is housed in Chilwell, which is a mainstream unit. He mainly keeps to himself in custody but is kept busy by working in the horticulture department, where he is classified as a yard billet. He is tasked with mowing the lawns and taking care of the gardens.

118 He has found it hard to see a psychologist in custody but has had a couple of sessions. He is currently prescribed Fluoxetine (30 mg), which he has been taking since shortly after his remand.

119 Mr Twomey has had visits from his mother twice, and speaks regularly to her, his ex‑partner and his eldest child.

120 When released, he plans to live in the house on his mother's farm, which is still vacant.

121 I turn now to the factors urged in mitigation, commencing with Mr Twomey's plea of guilty. This is a powerful factor in mitigation, for several reasons.

122 First, the plea is to be treated as a relatively early plea given that the prosecution only considered a charge of manslaughter following the case conference. Then, as soon as the murder indictment was withdrawn and an indictment charging manslaughter instead was filed following the sentence indication hearing, Mr Twomey pleaded guilty at the first opportunity.

123 Second, as well as being of high utilitarian benefit and signifying an acceptance of responsibility, the plea of guilty has spared the witnesses from giving evidence at what would have been a stressful homicide trial, especially for Mr Cairns' family.

124 Third, and most importantly, Mr Twomey has pleaded guilty despite having at least two viable defences. First, given what he said on the prison calls, he could have run a strong case of self‑defence. Second, given the evidence of the injuries sustained by Mr Cairns in the days before his death, and the medical opinion of both Dr Isles and Dr Bedford, Mr Twomey could have disputed causation. In either case, if the defence succeeded, a complete acquittal would have resulted. Many an accused person would have tried his or her luck before a jury. By his plea of guilty, however, Mr Twomey eschewed that course. In my opinion, a plea of guilty entered in these circumstances is worthy of all the more weight in mitigation.

125 Next, I am satisfied that Mr Twomey is genuinely remorseful for his offending and the harm it has caused. The evidence that persuades me to that view includes the following:

126 First, when Mr Twomey was with Mr Moore immediately after the offence, he was emotional and crying.

127 Second, the manner in which he spoke about the incident on the telephone to his family in the prison calls - and, in particular, his acknowledgment that he had "over‑reacted" and gone too far - suggests remorse to me.

128 Third, Mr Twomey's plea of guilty, and the particular circumstances in which it was entered, also suggest a sense of moral responsibility and remorse.

129 Fourth, his remarks to Mr Campbell indicated to him that Mr Twomey felt sorry for his actions.

130 Fifth, and finally, I accept Mr Cronin when he said that Mr Twomey asked him to convey to Mr Cairns' family an apology for the profound effect that this crime has had on them.

Limited and irrelevant criminal history; positively good character

131 Next, as we have seen, Mr Twomey's criminal history is very limited. In my view, that history is of no relevance to the current charge.

132 More positively, the references from his daughter, his ex‑partner, his brother and his nephew all suggest that Mr Twomey is a man of good character. They speak of him as a dedicated, protective and caring father, one who helps those in need, is patient and gentle, loyal, and deeply sensitive. I accept these descriptions of him.

133 Next, for several reasons, I am also satisfied that Mr Twomey has very good prospects of rehabilitation. Those reasons include his limited criminal history, his positively good character traits, his plea of guilty and remorse, his strong family support, his solid work history, his low risk of reoffending, and his stated intention to engage with recommended supports to address issues impacting his mental health functioning.[17]

134 Finally, given the opinions of Mr Campbell, which I accept, I am satisfied that Mr Twomey's extremely severe depressive symptoms are likely to make any period of incarceration more difficult due to the resulting impacts on his functioning, and that "[t]his may ... increase his risk of periods of notable mental health deterioration".[18]

135 In R v Verdins,[19] the Court of Appeal held that impaired mental functioning may be relevant to sentencing in at least six ways. The fifth of those ways concerned the proposition that the existence of a condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.[20] The sixth of those ways would arise where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, which would be another factor tending to mitigate punishment.[21]

136 Thus, in my opinion, those fifth and sixth limbs of the principles outlined in Verdins are engaged in sentencing Mr Twomey, albeit only to a moderate extent.

Section 5(1) of the Sentencing Act

137 I turn now to the purposes of sentencing. Section 5(1) of the Sentencing Act 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

138 In my opinion, general deterrence, denunciation and just punishment are important sentencing purposes in this case. Mr Twomey's crime was serious. A man was killed, and his loss is unfathomable to his loved ones. The sentence must reflect the Court's denunciation of such a crime; it must serve as a deterrent to others; and it must involve punishment that is just in all the circumstances.

Specific deterrence and protection of the community

139 It is also necessary that the sentence deter Mr Twomey personally and protect the community from repeat behaviour by him. That said, given the absence of any meaningful criminal history at the age of 47, his low risk of reoffending, his plea of guilty and remorse, his strong prospects of rehabilitation, and the length of the sentence compelled by other considerations, I think that the weight to be given to the purposes of specific deterrence and community protection is of only very minor moment in the sentencing calculus in this case.

140 In contrast, rehabilitation remains an important purpose in fixing sentence. There are at least two reasons why that is so.

141 First, notwithstanding the gravity of his crime, the fact that Mr Twomey has such strong prospects of rehabilitation makes rehabilitation a sentencing purpose that must be afforded significant weight.

142 Second, it is necessary to recognise the interplay between rehabilitation and protection of the community. One of the great aims of the criminal law is to protect the community through rehabilitation of offenders. Mr Twomey will be returning to the community at some point. It is therefore in the community's interests to maximise his strong prospects of rehabilitation, and to ensure that he is not crushed by an unduly long sentence and non‑parole period, 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 as strong as they can be.

143 Next, I note that the sentence I shall impose is intended to conform with the principle of parsimony, as it must. This principle, which is reflected in s 5(3) of the Sentencing Act in a modified form, 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.

144 I turn now to current sentencing practices for manslaughter, in so far as I can determine them. These practices are but one factor in sentencing, and certainly not a controlling one at that, but they are nevertheless important in the sentencing synthesis.

145 To this end, I have had regard to sentencing statistics for the offence.[22] During the period from 2017-18 to 2021-22, prison sentences for manslaughter averaged between seven years and seven months and nine‑and‑a‑half years, with non‑parole periods averaging between five years and two months and seven years.

146 However, in considering these statistics, I recognise that they are of limited utility. This is mainly because they do not distinguish cases according to their most important sentencing considerations, such as the gravity of the offence, the age of the offender, his or her prospects of rehabilitation, whether there was a plea of not guilty or guilty, whether there was a significant criminal history or not, and so on. Nevertheless, these statistics do give some guidance.

147 Sometimes, case comparisons are a useful way of assessing current sentencing practices. With this in mind, Mr Porceddu helpfully provided a table of three selected sentences imposed for this offence.[23]

148 Suffice it to say that, while none of the cases in the table struck me as being quite like Mr Twomey's case, I am satisfied that, when the various competing and complimentary factors in those and other cases are considered, the sentence I shall impose is consistent with those sentences.

149 That none of individual cases in the table is quite like the present case is neither surprising nor uncommon. Indeed, in the area of sentencing, it is almost always difficult usefully to compare cases. And, in any event, sentences are not precedents to be applied or distinguished.

150 In the end, as is the situation even where there are helpful statistics or more useful case comparisons, 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.

153 As I mentioned earlier, I have determined to impose a lesser sentence than indicated at the sentence indication hearing. The law set down by the legislature is that, once a sentence indication is taken up at the first available opportunity, as here, a court must not impose a more severe sentence than the maximum total effective sentence indicated.[24] However, the law allows that a less severe sentence may be imposed.[25]

154 I have decided to impose a lesser sentence than indicated previously for three reasons. First, having now heard the full plea in mitigation, I am satisfied that the offence, while serious by definition, is not quite as serious as I thought it was. Second, the factors in mitigation of which I was aware at that time (including Mr Twomey's plea of guilty, remorse, and prospects of rehabilitation) are of greater weight than I had estimated previously. Third, given Mr Campbell's report, the mitigating factors now include the Verdins considerations and the opinion that Mr Twomey has a low risk of recidivism, none of which I was aware of when giving my sentence indication.

155 Thus, balancing all relevant matters as best I can, for the manslaughter of John‑Paul Cairns, Marcus Twomey is convicted and sentenced to six years' imprisonment with a non‑parole period of three years.

156 The non‑parole period is a little shorter than usual, both in absolute terms and as a proportion of the head sentence. While all relevant factors have affected the head sentence, Mr Twomey's plea of guilty and remorse, his low risk of recidivism, his very good prospects of rehabilitation, and the additional hardship he endures in custody because of his depression, as well as the risk that his mental health will deteriorate in prison, when balanced with the gravity of the offence and the various purposes of punishment, have moved me to fix this particular non‑parole period.

157 Pursuant to s 18 of the Sentencing Act, I declare that, not including today, 588 days are reckoned as already served under this sentence.

158 This means that, putting aside any emergency management days, Mr Twomey should be eligible for parole by no later than 18 January 2027, and his head sentence should expire by no later than 17 January 2030.

159 Section 6AAA of the Sentencing Act requires that I declare the head sentence and non‑parole period I would have imposed but for Mr Twomey's plea of guilty - that is to say, the sentence I would have imposed had he pleaded not guilty and been found guilty of manslaughter following a trial. This is usually a fraught exercise because pleas of guilty and not guilty may affect other considerations relevant to sentence in ways that are different but are not easy to quantify. For example, in this case, it is likely that, absent Mr Twomey's plea of guilty, I would have not have made the same findings concerning remorse, prospects of rehabilitation and the weight to be accorded to specific deterrence, but it is difficult to say to what extent any such different findings would have impacted on sentence. Nevertheless, doing the best I can, I declare that, but for Mr Twomey's plea of guilty - including its interrelationship with other sentencing considerations - I would have imposed a sentence in the order of nine years' imprisonment with a non‑parole period of six years.

[2] See s 5 of the Crimes Act 1958 (Vic).

[3] Including evidence given at a preliminary hearing in this Court conducted before Judicial Registrar Freeman on 2 September 2024 pursuant to s 198B of the Criminal Procedure Act 2009 (Vic).

[4] Report of Mr Campbell (dated 15 June 2025).

[5] Report of Mr Campbell (dated 15 June 2025) at [33].

[6] Report of Mr Campbell (dated 15 June 2025) at [34].

[7] Report of Mr Campbell (dated 15 June 2025) at [34].

[8] Report of Mr Campbell (dated 15 June 2025) at [38].

[9] Report of Mr Campbell (dated 15 June 2025) at [35].

[10] Report of Mr Campbell (dated 15 June 2025) at [35].

[11] Report of Mr Campbell (dated 15 June 2025) at [37].

[12] See ss 322K(1) and (2) of the Crimes Act 1958 (Vic).

[13] 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 that provision has no application to the present case.

[14] See s 5 of the Crimes Act 1958 (Vic).

[15] Report of Mr Campbell (dated 15 June 2025) at [40].

[16] Report of Mr Campbell (dated 15 June 2025) at [52].

[17] Report of Mr Campbell (dated 15 June 2025) at [51].

[18] Report of Mr Campbell (dated 15 June 2025) at [40] & [52].

[19] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276[32](5)-(6) (per Maxwell P, Buchanan and Vincent JJA).

[20] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276[32] (per Maxwell P, Buchanan and Vincent JJA).

[21] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276[32](5).

[22] See Sentencing Advisory Council, Sentencing Trends for Manslaughter in the Higher Courts of Victoria 2017‑18 to 2021‑22, Snapshot 274 (29 June 2023), pp 3-4.

[23] The cases in the table are: DPP v Townsend [2015] VSC 456 (per Kaye JA); DPP v Carleton [2014] VSC 19 (per Kaye J); and R v Hanchett [2004] VSC 220 (per Kellam J). I also considered other manslaughter sentences too numerous to mention.

[24] See s 209(1) of the Criminal Procedure Act 2009 (Vic).

[25] On sentence indications in general, see ss 207-209 of the Criminal Procedure Act 2009 (Vic).