The Queen v Brown [2017] VSC 240

18 At the time of his death, Wayne was unemployed and residing between friends' houses and the garage of his parents' home.

19 He is survived by four children, aged between eighteen and fourteen.

20 Only recently, he had recommenced a relationship with Michelle Dawson. According to Michelle, that occurred officially on Valentine's Day, 2016, while Wayne was serving a four-month sentence of imprisonment (plus a twelve-month community correction order) for breaching an intervention order and assaulting his father. He was released from prison on 23 May 2016.

21 Also only recently, in November 2015, Wayne had met his and Michelle's daughter Madison for the first time, and the two were attempting to form a father-daughter relationship.

22 His relationship with both Michelle and Madison was volatile. On 18 January 2016, a family violence incident was reported to police. In particular, Madison reported an argument and aggressive behaviour by her father. She made a formal statement to police in the presence of her mother, but asked that they not proceed with criminal charges. On 22 February 2016, on the application of police, an intervention order was made against Wayne for twelve months. The order, which was still active on the night of his death, prohibited Wayne from: (i) committing family violence against Michelle or Madison; (ii) intentionally damaging their property or threatening to do so; and (iii) going to or remaining within 200 metres of their home address if affected by alcohol.

23 On 30 March 2005, Colin Brown had an intervention order taken out against Wayne. The order, which also was still active at the time of this incident, prohibited Wayne from: (i) assaulting, harassing, threatening or intimidating his father; (ii) approaching, telephoning or contacting his father except in the company of a police officer, or by direction; (iii) knowingly being at or within 200 metres of his parents' home, or any other premises where his father lives or works, except in the company of a police officer; (iv) damaging property owned or jointly owned by his father; and (v) causing another person to engage in conduct prohibited by the order.

24 Shane Brown was born on 25 August 1983, also in Dandenong. He was aged 32 at the time of the offence and is now 33. He is the second of three children. Wayne was his (older) brother and Kelly Brown is his (younger) sister.

25 Like Wayne, Shane initially resided in Noble Park with his family. After the family moved to Cranbourne, he attended Cranbourne Primary School and then Cranbourne High School, completing up to Year 10.

26 At the time of the offence, Shane was unemployed and residing at 155 Camms Road, Cranbourne, with his parents.

27 He has a daughter, aged nine, who is cared for by her maternal grandmother.

29 On Friday 10 June 2016, at about 5:00 p.m., Wayne contacted Michelle and asked her to meet with him. Michelle did not want Wayne coming to her house as she did not feel safe meeting him on her own. During the few weeks between his release from prison and his death, Wayne had been threatening or violent to Michelle on a number of occasions, and threatening at least once to Madison. So, instead, Michelle agreed to collect him from Cranbourne and suggested they talk at his parents' house. She contacted Wayne's mother and obtained permission to attend her home with Wayne.

30 Between 6:30 p.m. and 7:00 p.m., Michelle and Madison drove to High Street, Cranbourne, to collect Wayne. When they met him, Wayne had some Jim Beam (bourbon) cans and marijuana.

31 They then drove to his parents' house in Cranbourne. Wayne's parents were at home, as was his brother Shane. Madison went to Shane's bedroom so that she could talk and watch television with him. Wayne and Michelle went to the garage to discuss their relationship. Wayne had a double mattress set up in the garage where he would sleep from time to time. After a period of time talking, they returned to the house, where Wayne continued drinking.

32 According to all at the house, Wayne then became abusive and aggressive towards everyone there.

33 While there is no dispute between the parties about what occurred next, the prosecution summary of the behaviour of both brothers between this point and the stabbing does not include some of the details given by the eye-witnesses. That is understandable, because the accounts given by those witnesses all differ to a greater or lesser degree. Nevertheless, for two reasons, I think it is necessary to summarize each account, and then continue with the prosecution summary and indicate my findings where necessary. The first reason is that this evidence shows just how difficult a bind Shane must have been in when he chose to act as he did. The second reason is that this same evidence shows the substantial worth in mitigation of Shane's admissions to police and his plea of guilty.

34 I turn first to Michelle Dawson's account. She made a written statement to police at 9:40 p.m. on 12 June 2016.[2]

35 She said that Wayne threatened to smash her in the face. He indicated a chopping board on the kitchen bench and said he felt like throwing it at her face. He also swiped at some cutlery on the bench, which flew towards his mother and her.

36 Colin Brown came out of his bedroom and attempted to calm his son down. But Wayne continued to abuse his father, including telling him to "fuck off" and calling him "a dog". At one point, Wayne grabbed a silver-handled knife from a knife block. While he did not pull the knife out of the block, he said something which implied, to Michelle, that he would use the knife on his father. Wayne's mother moved the knife block to a cabinet out of Wayne's reach.

37 Shane came out of his bedroom several times and told Wayne to "stop carrying on" or to leave. His parents also told him to leave. Wayne told his brother, "You fuck off, you cunt." At one point, Wayne lunged towards Shane from a chair, threatened him and said that he was "prepared to do life" if he had to.

38 At another point, Wayne's mother said she was going to ring the police to have him taken away. Wayne's response was to smash the phone out of her hand.

39 Later, Madison came out of Shane's bedroom and chastised Wayne for threatening everyone and carrying on. Wayne said something like, "Fuck off, you little dog." Madison began to cry.

40 Michelle started to push Madison towards the bathroom to get her out of the way and keep her safe. As she was doing so, Shane came out of his bedroom and moved towards Wayne. She could hear Shane telling Wayne to get out, but could not see or hear everything, because they were in the bathroom by then and Madison was screaming hysterically. Madison told her that she thought "Uncle Shane has stabbed Dad". When Michelle left the bathroom, Shane was gone and Wayne was lying on the floor, bleeding.

41 Michelle offered the opinion that "Shane was only trying to protect us".

42 Next, I turn to the account of Iolanda Brown. She made a written statement to police at 2:15 a.m. on 11 June 2016.[3]

43 Mrs Brown said that Wayne became aggressive and started yelling at Michelle. While she told her son to stop, this seemed only to make him angrier. Later, the fact that Michelle was being quiet seemed to make him mad as well. At one point, Wayne said, "Your son better not be backstabbing me to my daughter." After Mrs Brown tried to assure him that that would not be occurring, Wayne said, "Fucken [arse] - I'll soon find out, and if he said anything to my daughter, there will be hell to pay." His mother then said she had had enough and told him to leave.

44 When Michelle said she would be going home after a cigarette and questioned Wayne as to why he was so angry, he said, "It's just me. If you don't like it, fuck off home." He then started yelling and threatening Michelle. Mrs Brown became worried that her son would become violent.

45 Madison came to the kitchen and said to Wayne, "Shut the hell up and don't speak to my mum like that." His response was, "Why don't you shut the fuck up." Michelle told Wayne not to speak to their daughter like that. Madison went back to Shane's room. Wayne then said to Michelle, "I should bloody knock you out."

46 Mrs Brown then told her son to "get out". Her husband came out of his bedroom and told Wayne to get out, otherwise he would call the police. This, however, only made Wayne angrier. Colin Brown then went to use the house phone but Wayne stopped him. In Mrs Brown's view, things were now out of hand.

47 Michelle headed to the bathroom. Mrs Brown said to her son, "I've had it, I'm calling the police." Wayne then knocked her mobile phone out of her hand. He turned and said, "You're all a pack of dogs."

48 At that point, Shane came out of his bedroom and said, "Me too?" Wayne said, "Yeah, you're all dogs." Shane said, "Do you want me to smash you?" Wayne got up from the couch and said, "Just go. I don't want to fight and hurt you." Shane then tapped Wayne on the face and they started pushing each other.

49 Mrs Brown said that, from that point, everything happened very quickly. She was unable to see from her vantage point. She did not know where the knife came from or how it happened. All she heard was Wayne saying, "I've been stabbed, he stabbed me." She heard her husband say, "What the hell have you done? Quick, call an ambulance." Her husband called an ambulance but she did not see where Shane went.

50 Next, I turn to Colin Brown. He made a written statement to police at 10:18 p.m. on 10 June 2016.[4]

51 Mr Brown said that his wife, Michelle and Wayne were arguing in the lounge for quite a while.

52 Wayne called Madison out from the bedroom, where she was watching television with Shane. When Madison came to the lounge, Wayne started to abuse her. Shane had followed Madison to the doorway where the hall meets the lounge. Wayne continued yelling abuse at Madison and called her "a little mole" and "a slut". She told Wayne to stop, and then he hit her to the face.

53 Shane saw this and said, "Don't worry, I'll protect you." He ran back to his room where he armed himself with a knife. He then came charging down the hallway and ran up to Wayne. The two men had a scuffle and Shane stabbed Wayne in the left side of his chest with the knife. Wayne immediately yelled, "He stabbed me." Blood started coming from the left side of his chest. Shane took off out of the house straight away.

54 Next, I turn to Madison Jagger. She did not make a written statement. Instead, her oral statement to police was recorded and transcribed.[5]

55 Madison said that, after her parents returned from the garage, her father was swearing, carrying on, slamming doors, threatening her grandparents and threatening to hit her mother. She believed he actually hit her mother. She was angry and left Shane's bedroom and told her father to stop threatening her mum and to leave. His response was to call her "a scrag" and say that he was going to hit her as well. Shane then came out of his room, calling her father "a little girl" and saying, "All you can do is hit a woman."

56 Things escalated from there. Madison and her mother were scared that Wayne was going to try to hurt them, so they went to the bathroom. Shane went back to his room and then came back out. She thought they were just punching at each other, but it turned out that Shane had a knife, which he swung and got her father. Her father responded, "I've been stabbed, you cunt."

57 Earlier, Shane told her that, if her father did try to hurt her, he would protect her.

58 Finally, I turn to Shane Brown. After he handed himself in to police the next day, on Saturday 11 June 2016, Shane participated in a record of interview.[6] His account included the following.

59 Wayne came to the house with Michelle and Madison. Shane was in his room minding his own business. An argument started and Wayne began banging the house around and arguing and having a go at his parents. Wayne became more violent and started to threaten Michelle, Madison and his parents. He believed that Wayne broke the house phone and snatched his mother's phone from her when she tried to call police.

60 Wayne was "dogging everyone in the house" and calling them "scum". Shane left his bedroom and confronted Wayne, saying, "If you're gunna dog me, say it to my face." Wayne told him to "piss off" and continued to abuse Michelle.

61 Shane returned to his room for a period of time. He was there with Madison. Wayne called out to her and she went and spoke to him. Wayne called her a "moll" or something similar. Madison returned to his room upset. She was "bawling her eyes out, pretty scared ... and shaking".

62 He said that, when he saw "the way the kid was, I didn't like it ... [and] it really, really got to me and that's when I wasn't thinking, just grabbed the knife out of my room and I walked down the hallway, approached him and said nothin' and ... [s]tabbed him with a knife".

63 He said, "I didn't want to do it. I regret fuckin' doing it. I feel bad, but he had to be stopped. No one was ever gunna get him out of the house and I just done what I done."

64 He also said, "I done it to stop him but I knew what it was gunna do to him 'cause of the way I done it, with force, and I knew he was gunna die."

65 When asked when he had the knife, Shane said this: "I went back to me room and I sat down so long and ... when I seen me niece ... it got to me and I didn't like what I seen, I was petrified, you know, and her mum was hugging her and could see her shaking and stuff in her arms and bawling her eyes out and it just got to me. That's all. ... And like I said, without thinking, I done what I done".

66 When asked whether he had had any words with his brother before the stabbing, he said, "No, I didn't say nothin'."

67 When asked whether they "got into any physical blue prior to that", he said, "No, we didn't."

68 As for the knife, Shane said it was hanging on a hook in his room, as an ornament. He described it as "very dangerous" and as "not good". I break from the summary to observe that the knife does look dangerous and fearsome.[7]

69 Later in the interview, he said that, only last week, when Michelle had wanted to ask him (Shane) something, Wayne became jealous and was threatening violence. Shane, believing his brother "wanted to thump her", confronted him and said, "Leave her alone ... You wanna thump her, you thump me. ... You thump her, I'll thump you." Shane asked Michelle to take Wayne away and not to bring him home, but she would not listen.

70 Finally, Shane explained that he is left-handed but held the knife in his right hand when he stabbed his brother.

71 In light of the foregoing, I make the following findings, which are consistent with the prosecution summary.[8]

72 Wayne was aggressive and intimidating to all in the house in the lead-up to the stabbing. He prevented both of his parents from ringing the police, either by knocking the phone out of his mother's hands or by intimidating his father. He refused to leave when asked or told to do so by his parents and his brother. He at least implicitly suggested that violence might come to his parents and his brother. He expressly threatened Michelle with violence on multiple occasions and Madison at least once.

73 After Wayne had threatened Madison, she returned to Shane's room, "bawling her eyes out, pretty scared ... and shaking". Shane then formed the belief that Wayne was not going to leave and that his behaviour, which was becoming increasingly aggressive and disturbing, had to be stopped. He formed this view against a background of knowledge of previous instances of violence and threats by Wayne towards his family members.

74 Shane grabbed the knife from his room and walked down the hallway. He approached Wayne and, without saying anything, stabbed him in the left side of the chest.

75 While the accounts of Mr and Mrs Brown and Madison support the view that there was some sort of scuffle or fight between the brothers immediately prior to the stabbing, and while Michelle's account is not inconsistent with that view, Shane's own (very direct) account denies any such behaviour.

76 As for Shane's remarks - "but I knew what it was gunna do to him 'cause of the way I done it, with force, and I knew he was gunna die" - it is accepted by Mr McWilliams that they do not reflect his state of mind at the time of or just prior to the stabbing. Rather, they reflect the post-event realization of what he had done. I accept that concession, and must do so in any event, for otherwise this would be murder, not manslaughter.

77 I turn now to the events subsequent to the offence.

78 Following the stabbing, Shane returned to his bedroom and threw the knife into his wardrobe. He then left the house on foot.

79 Wayne immediately started yelling that he had been stabbed. His father called triple-zero and requested an ambulance and police. During the recorded call, Wayne can be heard in the background saying, "It's gone in me heart ... I'm gunna die ... It's leaking out of me ... I can't breathe."

80 At 9:01 p.m., Mrs Brown rang her daughter, Kelly Brown, and requested she call an ambulance as "someone's been stabbed". Kelly rang triple-zero and requested an ambulance and police. She told the operator she was unaware of what was happening but that she was worried as "my brothers are very violent". She later received two text messages from her mother stating, "Your brother has been stabbed," and, "Shane stabbed Wayne."

81 Police were first to the scene. They saw Wayne lying on his left side on the kitchen floor. There was an apparent blood spatter pattern leading from the lounge room to the kitchen. Wayne was conscious and breathing. Michelle was crouching over him holding a towel against his back. Family members were initially uncooperative with police in providing details of who had stabbed Wayne and about the instrument used to cause the injury.

82 Senior Constable John Nichols administered first aid. He asked Wayne who had inflicted the injury upon him. Wayne answered, "My fucking brother."

83 Paramedics arrived and took over the treatment of Wayne, who was complaining that he was unable to breathe. He was moved from the kitchen into the living room to allow better access to him. Ultimately, he lost consciousness and was declared deceased at 9:55 p.m.

84 After fleeing his home, Shane went to the home of his sister, Kelly Brown. He was emotional and said, "I'm so stupid, I stabbed my brother." He told his sister that he was protecting Madison. He expressed suicidal sentiments before leaving her house.

85 The next day, on Saturday 11 June 2016, in the early afternoon, Shane rang Julie Hopkins. He was crying and apologizing to her. He said, "I stabbed him, I killed him, he's dead." Ms Hopkins is the ex-partner of Wayne, and mother of his eldest child. Ms Hopkins is also the maternal grandmother of Shane's nine-year-old daughter, and has full custody of her.

86 Ms Hopkins attempted to convince Shane to surrender to police, but he continued to express suicidal sentiments. Eventually, he agreed to meet Ms Hopkins. A short time later, he went to Ms Hopkins's street and she convinced him to get into her car. He then asked to be driven to the Dandenong Police Station, as he had arranged to surrender to police there.

87 I turn now to the prosecution summary of the crime scene.

88 Wayne Brown was located lying on his back in the centre of the lounge room. The scene showed evidence of attempted medical intervention. There were areas of blood-staining within the lounge room, dining room and kitchen. Blood-staining extended from the lounge room along the hallway and into the bathroom.

89 Within the kitchen there was blood-staining on the bench and sink. A crushed Jim Beam can, also with an area of blood-staining, was located on the kitchen bench. A blood-stained t-shirt and hooded jumper, cut off during medical intervention, were found on the kitchen floor.

90 A post-mortem examination of Wayne's body was conducted by pathologist Dr David Ranson at the Victorian Institute of Forensic Medicine on 11 June 2016. Dr Ranson reported an incised stab wound to the left side of the chest; an associated stab wound to the left lung and an incised rib with longitudinal/axial fracturing; and resuscitation-related transverse rib fractures. The toxicology showed the presence of alcohol, methylamphetamine (or "ice"), cannabis and methadone in post-mortem blood samples.

91 Dr Ranson determined that the cause of death was a stab wound to the chest.

92 On Saturday 11 June 2016, at 1:44 p.m., Shane Brown attended the Dandenong Police Station and surrendered to police. He was arrested. As indicated earlier, he took part in a record of interview and made full admissions to stabbing his brother.

93 He was charged with murder and remanded in custody, where he has remained ever since.

94 He indicated an intention to plead guilty to manslaughter prior to the committal hearing on 13 February 2017. When an indictment charging manslaughter was filed in this Court the next day, he pleaded guilty upon arraignment.

96 Seven victim impact statements were filed. They were made by Wayne's mother Iolanda, his father Colin, his partner Michelle, his daughter Madison, his sister Kelly, his nephew (Kelly's son) Callum and his niece (Kelly's daughter) Tahnya.[9]

97 The statements reveal the terrible sense of loss and sadness the family feel as a result of Wayne's death.

98 The statements of Wayne's parents, in particular, also reveal how they are torn and the agony about which I spoke earlier. For example, Colin Brown said, among other things, the following:

I remember when [my two boys] were young and I used to take them to footy training together. I still have their trophies displayed at home. ... It is hard knowing that Shane has done it and I feel Shane didn't mean to do it. I feel like I have lost two sons, not one. The difficulty is now Wayne has gone and won't be forgotten, it is gut wrenching. ... With Shane in [gaol], it makes it harder and there is additional stress not knowing what will happen to him and when he will be out. ... For our own sanity, we hope that Shane is home with us soon and nothing happens to him in the meantime. I worry about his sanity.

99 Iolanda Brown's pain is equally evident in her remarks. For example, she said this:

I watched [Wayne] die in front of me. ... I feel like giving up with my life. ... Just talking about it upsets me and it brings it all back to me. ... Over the years, I copped threats and abuse from [Wayne]. I had more of a relationship with Shane. Wayne wondered why I was close to Shane. I disowned Wayne. I'd say to him, "I hate you and I disown you as a son." Now I wish I could take it all back. We became closer when Michelle and Madison were back in his life. Then we could have proper conversations. I think Shane was protecting us. I worry about how much this will affect Shane. ... I wish I could have Shane home. I miss him a lot. ... I have no hopes for the future. I just want Shane home to help with my healing.

100 The victim impact statements are powerful and moving documents.

101 In so far as it is permissible to do so, I have had regard to their contents in considering sentence.

Nature and gravity of offence; offender's culpability and degree of responsibility

102 I turn now to an assessment of the nature and gravity of the offence, and Shane Brown's culpability and degree of responsibility for the offence.

103 Manslaughter is a common law offence the maximum penalty for which is set by statute at 20 years' imprisonment.[10]

104 The offence is serious, by definition. The life of a relatively young man has been lost as a result of criminally dangerous and violent behaviour. Further, when a child pre-deceases his parents, it reverses the natural order of things.

105 The form of manslaughter relied on is manslaughter by an unlawful and dangerous act. This means that, while Shane Brown did not have an intention to kill or cause really serious injury (or recklessness thereto) when he stabbed his brother, for otherwise it would be murder, his plea of guilty accepts that his conduct did involve an unlawful assault and that a reasonable person in his position would have realised that, in stabbing him as he did, he was exposing his brother to an appreciable risk of serious injury.

106 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 down. 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 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.[11]

107 That there can be no inflexible rule is illustrated by the circumstances of this case. On the one hand, the offence had some serious features. First, Shane used a dangerous weapon to stab his brother. Second, given that he deliberately stabbed him with such a dangerous weapon, he must have intended his brother at least some harm. Thirdly, his response to his brother's behaviour was excessive. As I have said, this was a case of excessive defence of others (and perhaps himself). Fourthly, he committed the act in the presence of others, which must have been terrifying for them. Fifthly, the offence was committed while Shane was subject to, or at least still had not completed, a sentencing order, namely a drug treatment order.

108 On the other hand, there are features of the offence which tend in the other direction. First, Wayne had behaved in an aggressive and violent manner. Secondly, in those circumstances and given his understanding of Wayne's past history of violence, it was reasonable for Shane to believe that he had to be stopped for fear that one or more of his family might be harmed. Thirdly, while his response was excessive and while he should have chosen another means of dealing with him, an aggressive response of some description was not without substantial foundation or provocation. Attempting to reason with him, to have him leave and to call the police had all failed more than once. It was reasonable to conclude that the time for words had passed. Fourthly, Shane was minding his own business when his brother, in breach of an intervention order, attended the house and behaved in an appalling manner. Shane did not go looking for trouble; rather, the trouble came to him. Fifthly, there was very little pre-mediation before the stabbing. Rather, once he formed the view there was a need to act, he retrieved the knife and used it. Sixthly, there was only the one act of stabbing. Thus, it was not a repeated or prolonged assault.

109 In my view, the foregoing factors suggest a substantially lower level of gravity and moral culpability than does the simple description of walking up to his brother and, without words or warning, stabbing him to the chest with a large knife in full view of his family.

110 Mr Johns, who appeared for Shane Brown, submitted that the offence fell towards the lower end of the mid-range of gravity. Mr McWilliams accepted that characterization but submitted that Shane had some moral culpability because, despite the difficult circumstances he faced, he still had other options available to him. I accept those submissions.

111 I turn now to the factors in mitigation on which Shane Brown is entitled to rely. Before doing so, I shall set out in some detail his background as outlined by Mr Johns on the plea.

113 While he was educated to Year 10, he has poor literacy and numeracy skills.

114 Psychological testing conducted in 2010 suggests that his intellectual functioning falls in the below average to borderline range.[12]

115 Heavy alcohol and drug abuse have been features of his life since the age of fourteen or fifteen. Associated criminal offending, which I shall summarize shortly, has been consistent since his teenage years. Wayne, who was five years older, also had substance abuse issues from a young age and a criminal history dating back to his teenage years. It was largely through Wayne that Shane became involved in alcohol and illicit substance use at a young age. His brother was a criminogenic influence upon him.

116 Upon leaving school, Shane worked with his father for about six to eight months at a Nestle factory, packaging ice cream. Between the ages fifteen and 21, he worked odd jobs. At 21, he got a job at a meat-works at Dandenong, where he stayed for eighteen months. From 2008, he worked for the Jim's Mowing franchise for two years. From 2010 to the present, he has been unemployed.

117 Shane had a relationship with Naomi Hopkins at the age of 22. Their daughter was born in 2006. As indicated earlier, Naomi's mother Julie Hopkins is the primary carer for the child. After separating from Naomi, Shane moved back home with his parents.

118 Shane has a significant criminal history.[13] In 2015, he received a twelve-month drug treatment order for car theft, burglary and other offences. In 2011, he was sentenced to 75 days' imprisonment for assault and criminal damage. Earlier in 2011, he received a sentence of twelve months' imprisonment, to be served as a combined custody and treatment order, for several offences including threatening to kill, assault and breaching an intervention order. In 2010, he received a suspended sentence for breaching a family violence safety notice. In 2008, he received a suspended sentence for attempted theft and assault. In 2007, he was sentenced to three months' imprisonment for burglary and theft. In 2006, he was placed on a community based order ("CBO") for burglary and attempted theft. In 2002, he received a total of 140 days in a youth training centre for dishonesty offences. In 2001, he was placed on a CBO for theft and destroying property.

119 Having set out that background, I turn now to the mitigating factors.

120 First, Shane made full and frank admissions to his behaviour and has pleaded guilty to the charge. These actions are significant in several ways.

121 First, the plea of guilty was indicated prior to the committal hearing and entered at the first mention in this Court. Thus, it is an early plea.

122 Secondly, his admissions and plea have obviated the need for what would have been a stressful contested committal hearing and trial and have spared the witnesses the ordeal of reliving these events and being cross-examined about them.

123 Thirdly, given the statements of the others present at the house, which suggested a viable basis for a defence of self-defence or defence of others, and thereby the chance of an outright acquittal, the full and frank admissions and plea of guilty are of all the more weight in mitigation.

124 Fourthly, those admissions and the guilty plea involve an acceptance by Shane of moral and legal responsibility for his actions and a willingness to facilitate the course of justice.

125 Secondly, I am satisfied that Shane Brown is profoundly sorry for, and understands the impact of, his actions. There are three reasons for that conclusion.

126 First, his extensive admissions and plea of guilty indicate remorse. He could have chosen to say nothing to police and to contest his guilt. Instead, the course he has chosen - including his remarks to the effect that he "didn't want to do it", that he regretted what he had done and that he felt "bad" - make it plain that he is remorseful.

127 Secondly, while he fled the crime scene, he was so distraught at what he had done that he was contemplating suicide. Ultimately, he handed himself in to police.

128 Thirdly, his father says in his reference that "Shane is sorry for what he did 'cause he loves his brother and he'll miss the things they used to do together for the rest of his life".

129 Fourthly, since Wayne and the other victims of his crime are his own family, he will have a constant reminder of the hurt he has caused whenever he thinks of his family or looks into their faces.

130 Thirdly, the latter point makes it likely that Shane's time in custody will be more onerous than usual, because he will have to do his time - and indeed live the rest of his days - knowing that he killed his brother and thereby caused grave hurt to his own family.

131 Finally, I am satisfied that Shane Brown has reasonable to good prospects of rehabilitation. I do not say those prospects are good, very good or excellent, but just reasonable to good. There are several reasons for that conclusion.

132 First, his admissions, early plea of guilty and remorse suggest positive prospects of rehabilitation.

133 Secondly, while he has an extensive criminal history and a poor work record in recent years, the references tendered on the plea speak of several positive character traits, including a kind and caring nature, a preparedness to help others, a capacity to work hard, and devotion and loyalty to family and friends. Given those references and the fact that he has worked earlier in his life, I accept that there is some prospect that he can and will work upon his ultimate release from prison.

134 Thirdly, that he has the strong support of his family will remain important to his ultimate rehabilitation.

135 Fourthly, however, while it is promising that he has done drug and alcohol courses when in prison, his criminal history, the fact that he did not complete the drug treatment order and his long-term battle with drugs and alcohol all point towards poorer prospects of rehabilitation.

136 It is for those reasons that, balancing all matters, I assess his prospects of rehabilitation as reasonable to good.

138 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

139 In my view, while general deterrence, just punishment and denunciation are moderated to some extent by the very difficult circumstances that faced Shane on that night, they nevertheless remain important considerations in this case of manslaughter. The community should understand that behaviour of the type engaged in by Shane Brown 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 an unlawful, dangerous and violent act and that the lives of Wayne's loved ones have been marred forever in consequence.

140 While the need for specific deterrence must be given some weight, it is moderated heavily by the fact that Shane forever will have to live with the fact that he has killed his own brother, as well as by his admissions, plea of guilty, remorse and prospects of rehabilitation.

141 In my view, rehabilitation remains an important consideration. This is particularly so because Shane has reasonable to good prospects of rehabilitation.

142 I do not consider that there is any need to add a separate component in sentencing for protection of the community. I consider it very unlikely that Shane would act in such a seriously violent way towards any other person. While he has prior convictions for violence, they are of a much lesser order of seriousness and are comparatively old now. The sentence that results from the other purposes of sentencing will ensure that the sentence is of more than sufficient severity to protect the community.

143 I think it is important to recognize the interplay between rehabilitation and protection of the community in any event. Shane Brown 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 the community are good.

144 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. I have applied this provision and this principle when considering the appropriate sentence in this case.

145 In so far as I can determine them, I have had regard to current sentencing practices for manslaughter.

146 Sentencing statistics show that, for the period from 2011-12 to 2015-16, prison sentences for manslaughter ranged from about two to twelve years' imprisonment; that the average (mean) sentence ranged from about six years and eleven months' imprisonment in 2013-14 to eight years and eleven months' imprisonment in 2014-15; and that the median sentence was eight years' imprisonment, as was the mode. During the same period, non-parole periods ranged from nine months to nine years; the median non-parole period was five years and six months; and the modal non-parole period was five to less than six years.[14]

147 Those 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.

148 Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. Counsel referred me to several cases involving manslaughter by stabbing, all of which I have considered.[15]

149 It is possible to make comparisons between the present case and those and other cases. But, in the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be applied or distinguished. 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 stabbing, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors. 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 particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Shane Brown's offence of manslaughter.

150 Another important factor that must be taken into account arises in this way. During his period on remand, Shane Brown has served a sentence of approximately nine months' imprisonment as a result of the cancellation of the drug treatment order to which he was subject around the time of the present offence. The effect is twofold. First, he has been denied about nine months of pre-sentence detention which otherwise would have been declared on the sentence I am about to impose for the current offence.[16] Secondly, this means that, in real terms, the sentence and non-parole I impose will be extended by nine months from the date of his arrest.

151 As a result, I must consider and take into account the principle of totality when fixing sentence. One way in which that can be done is by asking to what extent, if at all, the nine-month sentence would have been directed to be served cumulatively or concurrently with the sentence I am about to impose if it had been dealt with subsequently, and to adjust my sentence accordingly.

152 On the plea, Mr Johns agreed with the suggestion that, had the nine-month sentence been imposed subsequently, there would have been substantial concurrency and not a great deal of cumulation. Mr McWilliams did not put any submission to the contrary.

153 Given the fact that the current offence was committed without successful completion of the drug treatment order but allowing for the moderating effect of totality, I would have directed that only three months of the nine-month sentence be served cumulatively upon the new sentence. In order to achieve the same effective result, the sentence and the non-parole period I am about to impose have been reduced by six months.

154 Before formally announcing sentence, I note that Mr McWilliams applied for a disposal order in respect of various items. The application was not opposed. In those circumstances, I shall make the order sought.

157 For the reasons I have given, I regard this as an unusual case calling for an unusual sentence. I think that an element of mercy is due to Shane Brown because of the circumstances in which he acted and because of the fact that he will have to live forever with the fact that he killed his own brother.

158 Balancing these and all other factors as best I can, for the manslaughter of Wayne Brown, Shane Brown is convicted and sentenced to six years and three months' imprisonment with a non-parole period of three years and three months.

159 Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that 61 days (including today) of pre-sentence detention be reckoned as served under this sentence.

160 Given the nine-month sentence resulting from the cancelled drug treatment order, the sentence I have just imposed should mean that Mr Brown will not be eligible for parole until about four years after his arrest on 11 June 2016 (i.e. in June 2020) and that his head sentence will not expire until about seven years after that date (i.e. in June 2023). Put another way, it is as if he is now serving a total effective sentence of seven years' imprisonment with a non-parole period of four years from the time of his arrest in June last year. Further, that notional sentence is comprised of what would have been a sentence of six years and nine months' imprisonment with a non-parole period of three years and nine months for the present offence plus the cumulation of three months of the restored drug treatment order sentence, had the nine-month sentence been dealt with subsequently.

161 Absent Mr Brown's full admissions and plea of guilty, it is likely that I would have found his remorse and prospects of rehabilitation to be less compelling. Thus, while it is always a difficult thing to estimate, I declare, pursuant to s 6AAA of the Sentencing Act, that, but for Mr Brown's admissions and plea of guilty, I would have imposed a sentence in the order of nine years' imprisonment with a non-parole period of six years.[17]

[1] The Summary of Prosecution Opening became Exhibit 1.

[4] See Depositions, pp 80-81. Colin Brown also provided a detailed second statement to police at 12:10 p.m. on 14 September 2016 (Depositions, pp82-88). This statement went into the past history of his sons' behaviour.

[7] See photographs 124-128 in the booklet, which became Exhibit 16.

[8] My findings as to aggravating features are made on the criminal standard of proof, whereas those in mitigation are made on the civil standard.

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

[11] 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]).

[12] See the neuropsychological report of Luke Delaney (2010), which became Exhibit 15.

[14] Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 199, April 2017, pp 3-5.

[15] These included R v Casey [2006] VSC 146; R v Raimundo [2015] VSC 550; R v Johnson [2015] VSC 16; DPP v Bryan [2014] VSCA 54; R v Ajil [2015] VSC 725; Kells v The Queen [2013] VSCA 7; and R v Mazzaro [2015] VSC 528.

[16] See s 18 of the Sentencing Act 1991 (Vic).

[17] Again, allowing for the nine-month sentence he has already served, that would produce a situation in which it was as if he were doing a total effective sentence of nine years and nine months' imprisonment with a non-parole period of six years and nine months from the time of his arrest.