R v Walters [2012] VSC 608

2 Over the course of a few months before you killed him, you had become incensed by episodes of Mr Singer defecating within areas of the residential quarters of the hotel, including in the bathroom used by residents like yourself. One such episode had occurred the evening before you assaulted him. You confronted Mr Singer about it, demanding that he clean up his mess. He denied responsibility, but you told him he had until the next day to deal with it.

3 The following day, Sunday 2 October 2011, you were drinking alcohol with other residents on the first floor during the afternoon. Earlier in the morning, the publican, Mr Moore, had told Mr Singer by calling out to him through his closed door, that he had to leave the premises by the end of the week due to the ongoing complaints about him soiling the residential areas of the hotel.

4 As you became more affected by your drinking during the course of the afternoon, so you became more agitated with Mr Singer. A seasoned drinker, you told police you consumed five to six litres of cask wine during that day. You repeatedly visited his closed door at the end of the corridor of the first floor, opposite the bathroom, calling out to him and demanding he come out and clean up his mess. For some time Mr Singer remained in his room and did not come out.

5 By evening Mr Singer emerged to use the bathroom. You intercepted him before he could return to his room. There, at the end of the hallway, you punched him to the head and chest until he went to ground. You said, when interviewed by police, 'I hooked into him, you know? And I mean in a big way, and, yeah, just couldn't control myself. Couldn't stop.' While Mr Singer was on the ground in the hallway, you were seen to deliver a kick to him in the chest region, wearing steel capped boots, causing an audible thud.

6 You left him there, and returned to another room where you were drinking. At some point, Mr Singer evidently made his way back into his own room. On at least one, but more likely on a number of occasions, you returned to Mr Singer while he was outside, and then inside, his room. You continued your assault upon him. At various times you were joined in the room by two other residents of the hotel: Paul Russell and Brett Drummond. Mr Drummond is a co-accused whose trial is yet to take place. Mr Russell was a witness for the Crown against you.

7 While continuing your assault, as you had done earlier, you yelled abuse at Mr Singer, calling him names. Although some of the name calling and abuse might also be attributable to others, I accept that you accused him of being an 'animal', 'dirty piece of shit', 'maggot' and 'cunt'. In the room, you continued to punch Mr Singer about the head and body. He was pleading for you to leave him alone, and was heard to be moaning 'ow, ow' as he was beaten.

8 Eventually Mr Singer ceased responding. But with assistance from others, you took him out a door opposite his room that lead to an exterior fire escape. There you left him for some time, possibly an hour. He was either already dead, or he died out on that fire escape. After calling another acquaintance to attend the hotel to give you some advice as to what to do, you moved Mr Singer's body, again with assistance from others, down the fire escape stairs, out of the hotel gate, and into the driveway of an adjacent building. You left his body on that driveway where it was later discovered by passers-by who alerted the police.

9 Mr Singer, his health already compromised by emphysema and the effects of long-standing alcohol abuse, died from blunt force trauma, due to multiple injuries which involved the breaking of his ribs, the collapsing of his lung and the impairment of his ability to get sufficient oxygen. Pathology investigation revealed a fractured nose, sternum and 27 rib fractures. His body was covered in bruising and abrasions predominantly over his face, chest and back.

10 Meanwhile, later that night, in fact in the early hours of the next morning, you visited your brother at another hotel in Geelong. There you said your farewell to him, telling him you had 'bashed a man to death' when it had become too much for you that the man was excreting all over the hotel. You told your brother you would be going to gaol for a long time. And, as you told your brother you would do, you returned to the hotel where police were in attendance and turned yourself in. You told police, at the scene, 'You'd better arrest me, I did it'.

11 Later, when interviewed, you clearly accepted responsibility for killing Mr Singer, although maintaining that you did not intend to kill him. In your own words, your reason was: 'He's...leaving faeces around for other people to have to walk through you know, it's just disgusting. It disgusted me. I asked him to clean it up. He didn't. I asked him again. He didn't, and I lost the plot, and I'm sorry.'

12 You pleaded not guilty to the single charge of murder, although you told the jury you pleaded guilty to manslaughter. You first indicated to the Court that you offered to plead guilty to manslaughter on 15 June 2012.

13 The Crown relied upon nine separate features of the offence that it contended were aggravating features I should take into account when considering the appropriate sentence. They were: Mr Singer's vulnerability because of his personal attributes; the prolonged nature of the attack; the accompanying torment; the attacks being, in part, inflicted in company; the severity of the beating; the assaults being committed in his residential abode; the attempt to cover up the crime by moving the body; the lack of justification because the eviction of Mr Singer was 'in hand'; and your opportunities to desist from continuing the attack.

14 On your behalf Mr Hallowes criticized a number of the Crown's aggravating features. I will not discuss each of them in turn, but I accept a number of the criticisms, in particular those which pointed out that some of the features are what turned this attack into murder rather than an assault. Seen in that way, those features are not so much aggravating features of the crime of murder, but constituent components of the crime itself.

15 But, putting aside the essential features of the assaults which brought about death and made this a crime of murder, the fact that Mr Singer was an easy target as a weak, vulnerable man; that the assaults were, in part, carried out in company and were accompanied by humiliating abuse; and that they were prolonged with the opportunity to desist (accentuating the degree of deliberation), all constitute aggravating features of your crime.

16 It is not clear exactly how long the assault lasted. Its duration, and the number of times you returned to Mr Singer to continue beating him, were matters of controversy in the trial. But in my view it is highly likely that the jury was influenced in forming the view that you intended to kill or cause really serious injury, by finding that the assault lasted over an extended period and that you returned to Mr Singer on a number of occasions, enabling them to conclude that your conduct was accompanied by real deliberation. I make the same finding.

17 Mr Hallowes argued that your behaviour was not gratuitous; that it came at the end of a long build up of frustration and disgust at Mr Singer's conduct. Had it been gratuitous, that may have been an aggravating feature. The fact that it lacks that aggravating character does not give it any mitigatory effect. And as the Crown points out, the cause of your frustration seemed to have an imminent solution (ie Mr Singer's pending eviction), but you chose to take matters into your own hands.

18 Neither the Crown or your counsel suggested that your alcohol consumption is to be seen as either aggravating or mitigatory. I accept that. But to an extent, it is explanatory. During the trial, evidence was led of the effect of the consumption of more than four litres of alcohol on a person's ability to predict the consequence of actions. And although the jury was not satisfied that your alcohol consumption so robbed you of that ability that it prevented murderous intent, nevertheless your consumption of alcohol, and its effect upon you, did, in my view, likely release the outburst of anger and violence that led to Mr Singer's death. That observation, when combined with the opinion of the psychologist tendered on your behalf, to which I will return, has implications for my evaluation of your rehabilitation prospects and the likelihood of your reoffending.

19 Mr Hallowes submitted that it is likely that the jury was persuaded that you intended to cause Mr Singer really serious injury, rather than to kill him. The Crown did not seriously dispute that contention, and I accept it is probably correct. Is that a factor in your favour when being sentenced for the crime of murder which may be established by a finding of either of those two intentions?

20 In Barrett v The Queen,[1] Maxwell P and Neave JA (Nettle JA agreeing), after citing R v Aiton,[2] said of the argument that reckless murder was of a lesser gravity than intentional murder:

The moral culpability of two different offenders does not turn solely on the category of mens rea which gave rise to their respective murder convictions. For example an offender who deliberately kills a victim with a single gunshot is not necessarily to be regarded as more morally culpable than a person who seriously assaults a victim and leaves them in an isolated place without medical help, being reckless as to the probability that they may suffer lasting incapacity or die.[3]

21 It is at least implicit, if not explicit, from the remarks of the Court of Appeal in Likiardopoulos v R[4] that the conclusion that a conviction for murder was established upon an intent to cause really serious injury, rather than an intent to kill, can, in a given case, make a discernible difference to moral culpability.

22 It follows from these principles that an offender's moral culpability may be, but is not necessarily, lesser because he or she only intended to cause the victim really serious injury, as opposed to intending to kill the victim.

23 In the circumstances of this particular case, in weighing your culpability I am not assisted by distinguishing between your culpability on the basis that you intended to beat Mr Singer to death or intended to cause him really serious injury from which he in fact died. That is particularly so when, as you said, you 'lost the plot'. Whether you lost the plot and intended to kill him, or lost the plot and intended to cause him really serious injury, serious enough for him to die from those injuries, matters little in evaluating your moral culpability for his death. There may be cases in which such a distinction is potent; it is not in this case.

24 Mr Singer was 55 years of age when he died. He was a man with significant natural disease, borne of years of heavy alcohol abuse. He had lived in boarding house type accommodation for some time, having previously lived in a house at Queenscliffe with another of the Sir Charles Hotham residents. He was a man with little in the way of possessions, and kept largely to himself.

25 He is survived by a sister, Terri, a daughter, Rebecca, and a step-daughter, Jasmine. Terri and Jasmine made victim impact statements testifying to the pain and distress Mr Singer's death has caused them. Evidently, his death has brought additional disturbance upon his already depressed daughter, Rebecca, such that she now needs to be cared for by Jasmine, causing a great burden upon her. As is commonly the case, your crime has released waves of long-term pain and suffering into the community.

26 The Crown submits that the evidence of any true remorse for your crime is limited. It contends that true remorse should be contrasted with mere regret for the position you find yourself in, and repeated its jury submission that your demeanour and words during the record of interview betrayed a continuing loathing and hostility toward Mr Singer. Mr Hallowes, while accepting there is a 'scale' of remorse, nevertheless argued that I should find that you have demonstrated a degree of true remorse.

27 Genuine remorse, along with true acceptance of responsibility, often signals good prospects for rehabilitation or, at least, less need to specifically deter an offender from similar offending. Evidence of remorse and acceptance of responsibility is best seen in conduct: such as an immediate acknowledgment of wrong doing, assistance given to the victim, surrendering to police, making admissions when interviewed, pleading guilty at the earliest opportunity, and statements of empathy for the victims. Statements of remorse alone, especially without some of that conduct, are naturally treated with caution. Indeed, as has been said, 'remorse is an elusive concept which is not to be confused with self pity'.[5]

28 In your case, on the evening of the murder you were heard to say that you were 'disappointed with yourself' for what you had done. You were tearful with your brother when unburdening yourself with your deeds. In the interview with police, you said on a number of occasions (as exemplified in the extract quoted earlier) that you were sorry. And the psychologist (Mr Patrick Newton), who you recently consulted for the purpose of your plea, recorded that you expressed sorrow for the death of Mr Singer, and acknowledged that you had behaved badly in assaulting him.

29 Having also surrendered to police and confessed to having killed Mr Singer, and having at least pleaded guilty to manslaughter, thereby acknowledging some criminal responsibility for Mr Singer's death, I am satisfied that your statements of sorrow for what you have done do betoken a degree of genuine remorse. Against that, you did contest the charge of which you have been convicted, and there is little evidence of you having moved from your patent disgust at Mr Singer to any degree of empathy with his plight.

30 In the end, the picture is somewhat mixed and ambivalent. Such a conclusion is relevant to my evaluation of the sentencing purposes of specific deterrence, community protection and the prospects of rehabilitation, as they apply to you. Perhaps more relevant to those considerations, however, is what is said by Mr Newton, the psychologist, about your alcohol dependence and other personality traits. I now turn to those matters.

31 Born in 1966, you grew up in Geelong, the middle of five children. Your father was a truck driver and your mother worked at the canteen at the Ford factory in North Geelong. You left school at the end of Year 11 although you failed English and Maths in most years. After leaving school, you worked as an apprentice painter only for a matter of weeks, then took up work in the Ford foundry for four years. During that time you remained living at home with your family.

32 You did not enjoy a good relationship with your father. Though he sometimes abused you physically, he mainly belittled you and subjected you to verbal abuse. You told Mr Newton that your mother did not intervene in this abuse and your brothers actively joined in some of the mistreatment. Following a large argument with your father in 1989, when you were aged 22, you left home, wrote off your car in an accident, and also left work. After leaving home, you remained away from your family for many years. And, although you occasionally telephoned your mother from time to time, thereafter you had very little contact with your family.

33 Having already commenced drinking alcohol in your mid teens, by the age of 17 you were drinking on a daily basis. But from 1989, after you left home and ventured north for farm work and fruit picking, your daily routine was to commence drinking upon rising and continue drinking throughout the day. You told Mr Newton you would then drink after work until you either collapsed in a state of alcoholic stupor or you had exhausted your supply. You continued with that pattern of drinking, more or less, until your arrest on these matters.

34 You continued a somewhat itinerant lifestyle working on farms and fruit picking, living in caravan parks and camping grounds, for many years. Whilst there were some periods of unemployment, you mostly worked for the larger part of your life.

35 For a number of years, you had a relationship with a woman called Pauline, commencing from when you were about 23 or 24. It was a somewhat volatile relationship; Pauline was also an alcoholic. From that relationship you had two children, Cayla born in 1991 and Adam born in 1993. You have not seen either of them since the year 2000 when they were placed in welfare, and you now have no knowledge of what they are doing.

36 You returned to the Geelong region approximately two years before you killed Mr Singer. Your father had died in 2001. You lived at home for a short period of time, then with your brother Darren but ultimately moved into the Sir Charles Hotham Hotel about a year before the offence.

37 I was informed you are a person who keeps to himself, you do not socialise and you have shut yourself off from making friends or maintaining any family relationships. Since remand you have refused to put anyone on your visitor's list, apparently because you do not wish to be reminded of 'the outside world' or its difficulties.

38 You have a number of prior convictions for offences from 11 court appearances, commencing in 1989 in Geelong and continuing through to 2010. I accept the submissions made on your behalf that, considering the nature of your lifestyle over the past 20 years, they do not evince any serious pattern of lawlessness or tendency to violence. There were a couple of episodes of carrying a prescribed weapon, but no indication of any tendency to use them. You were convicted of an assault in 2003 for which you were fined $500. Otherwise (apart from some thefts), most of the offences are of the nature of public nuisance offences where alcohol was involved. Despite the apparent number of offences, it was not an unreasonable submission on your behalf to say that the vicious murder of Mr Singer was out of character.

39 Perhaps the most concerning aspect of your character is your relationship with alcohol. Mr Newton has no difficulty in diagnosing you as alcohol dependent. From your history of alcohol consumption he makes these statements:

More worrying still, his consumption of alcohol was so tightly integrated into his life that it effectively derailed his capacity in almost all other activities. Thus he was unable to complete education, capable of only semi-itinerant work (which allowed him to drink throughout the day), and could not maintain relationships with family, friends or partners. He has led an impoverished existence financially, interpersonally, and in terms of a sense of meaning and direction beyond his next drink.

...

... the corrosive effects of alcohol across Mr Walters' life have been so profound that there is now nothing remaining that can serve as a motivation to modify his drinking. That is, he seems to be of the view that alcohol is the only thing that can give his life even the most fleeting sense of meaning.

40 Mr Newton concedes that this profile is likely to make your rehabilitation challenging. He assesses you as being at significant risk of relapse into problem drinking upon your ultimate release from custody, and that relapse to alcohol abuse would be the single most important risk factor for you engaging in crime again.

41 Mr Newton also concluded that you are an extremely introverted man with little interest in social contact. You lack awareness of your anger and you are apt to respond quickly and forcibly to any perceived direct challenge. He recommends both alcohol-related education and counselling, and anger-management training.

42 Although he considers that your term in custody may provide an unprecedented window of opportunity for you to address the problems that have dominated your life to date, his opinion that you remain loath to contemplate a life without alcohol does not offer much promise that you will take that opportunity. Mr Hallowes' concession that one would need to be guarded about your prospects of rehabilitation is fairly made; indeed, it may even be putting it optimistically.

43 The maximum penalty for the crime of murder is life imprisonment. The Crown submitted to me that, for your crime, the appropriate range of sentence is between 18 to 21 years imprisonment as a head sentence, and between 16½ and 18½ years imprisonment as the minimum term to be served before you are eligible for parole. Mr Hallowes criticised both of those ranges as being excessive without himself positing an alternative range.

44 I was referred to a number of cases said to contain some guidance as to what might be an appropriate sentence together with, of course, the caution that 'like' cases can only, at best, provide a general guide or impression as to the appropriate range of sentences.[6] Of the cases cited to me as potentially comparable cases[7] the case of Morrison v The Queen[8] is perhaps of most assistance. But as well as points of similarity there are points of difference.

45 Morrison was sentenced by the trial judge to 19 years' imprisonment with a minimum term of 15 years' imprisonment after having pleaded guilty to one count of murder. On appeal he was re-sentenced to be imprisoned for a term of 18 years with a minimum term of 14 years' imprisonment before being eligible for parole.

46 In the company with another man, Morrison kicked, stomped and punched the victim to death in his hotel room in St Kilda. The attack was preceded by Morrison having consumed a very substantial amount of cask wine (14 litres) during the day prior to the attack. 51 years of age at the time of the crime, he, like you, had commenced consuming alcohol to excess from his teens. It was accepted that he suffered from a very significant alcohol dependency and also from depression.

47 The apparent motivation for the offence was a mistaken belief that the deceased was a paedophile. Like you, he had lived something of an itinerant life and the excessive drinking of alcohol had contributed to the deterioration of a number of relationships.

48 He too had a number of convictions for offences, mostly minor, only one of which was for violence (an assault) when he was 22 years of age for which he was fined $50. He had pleaded guilty to murder. The trial judge accepted that his remorse was 'genuine and profound'.

49 In the circumstances of that case, said to be exceptional, the Court of Appeal thought it appropriate to take into account Morrison's degree of intoxication when committing the offence as a factor in mitigation of his moral culpability. But, as I have said, in my view your consumption of alcohol in the circumstances of this case do not amount to a mitigatory factor, nor has it been suggested that it should. Your circumstances are also distinguishable from those of Mr Morrison in terms of the degree of remorse accepted by the court, and the fact that he pleaded guilty to murder whereas you contested the charge.

50 For the reasons I have mentioned, I do not think that rehabilitation looms large as a sentencing consideration in your case. Rather, the purposes of deterrence, both general and specific, punishment and denunciation figure more prominently.

51 It is now my task to pass sentence upon you. Bradley James Walters, for the murder of Edwin Singer, I sentence you to a term of 20 years' imprisonment. I fix a non-parole period of 17 years.

52 You have been in custody since 3 October 2011, and I declare pursuant to s 18(4) of the Sentencing Act 1991 that you have already served 431 days in custody, not including today. I direct that the fact that this declaration was made and its details be noted in the records of the court.

[1] Barrett v The Queen (2010) 27 VR 522.

[2] R v Aiton (1993) 68 A Crim R 578.

[3] Barrett v The Queen (2010) 27 VR 522 [27].

[4] Likiardopoulos v The Queen [2010] VSCA 344 [145] and [161].

[5] R v Whyte [2004] VSCA 5 [21] (Winneke P).

[6] Hudson v The Queen; DPP v Hudson [2010] VSCA 332 [29].

[7] Likiardopoulos v The Queen [2010] VSC 344, R v Andrakakos; DPP v Arkan; DPP v Andrakakos [2003] VSCA 170, R v Franklin [2001] VSCA 79; (2001) 3 VR 9 and Morrison v The Queen [2012] VSCA 222.

[8] Morrison v The Queen [2012] VSCA 222.