The Queen v Sharp [2015] VSC 116

2 I intend to sentence you to be imprisoned for eight (8) years, and to fix a period of four (4) years before which you are not to be considered eligible for release on parole. It is necessary that I state my reasons for arriving at that sentence.

3 At the time of his death John Starling was aged 35 years. He had met, and commenced a relationship with, Zoe Pilkington, at the start of 2013. You, aged 20 years, had recently moved to Darley with Amber Stewart and your two children.

4 During the evening of Friday 7 June 2013, Mr Starling, Ms Pilkington and their friend, Matthew Moore, having had dinner at Mr Starling's mother's residence, went to Mr Moore's residence in Taylor Drive, Darley, where you were present. The three, who had been drinking vodka and lemonade, continued drinking with you at Mr Moore's home, while socialising and listening to music. Later, two other men, Harley Riddell and Caleb Barron, also came to Mr Moore's house. It seems clear enough from the various accounts of those present that there was a degree of tension between you and Mr Starling during the course of the evening - possibly due to advances that you made to Ms Pilkington or her to you - although witnesses gave varying accounts as to who was present and what occurred.

5 What is clear enough is that at one point both you and Mr Starling went outside, and that, whilst outside, you punched Mr Starling once to the region of the head, causing him catastrophic injury. Mr Moore said that he was in the kitchen when Ms Pilkington came in saying that Mr Starling was on the ground, 'knocked out'. He then went outside and saw you standing over the prostrate Mr Starling. Mr Moore said to you, 'What the fuck? What the fuck have you done?'; prompting you to reply, 'He was being a smart cunt, so I hit him'. Despite the formidable amount of alcohol that Mr Moore had consumed, I accept as accurate his version of the conversation that he had with you.

6 You did not tell the police what had happened. As is your right - and I do not criticise you for doing so - you made 'no comment' when interviewed. But you did give a version of events to your de facto partner, Amber Stewart. You told her that you were all drinking, but that Mr Starling was going up to you, touching you and being annoying. You told Ms Stewart that you told Mr Starling, 'I'm warning you, I'm going to hurt you if you don't go away'. When you went outside to smoke, Mr Starling followed. You told Ms Stewart that Mr Starling said, 'I'll just go to your house and sleep with your missus'. It is then, you told Ms Stewart, that you punched Mr Starling to the jaw. As a result of the punch, Mr Starling stumbled back and then fell. Mr Moore told you to 'fuck off', but you wanted to get Mr Starling inside. You told Ms Stewart that Mr Moore told you to 'piss off', so you left and ran home. You told Ms Stewart that you were sure that Mr Starling was dead.

7 I note that you also gave a version to Dr John Reid, a forensic psychiatrist, which is contained in his report of 12 March 2015. In effect, you told Dr Reid that Ms Pilkington was being flirtatious, and that Mr Starling had deliberately invaded your personal space. You claimed that he made a lewd and sexually aggressive allusion to your partner whilst holding a bottle. Thinking that Mr Starling was going to 'bottle' you, you 'jabbed him with a right hook'. You told Dr Sharp that, being left-handed, you used your right hand so as not to hurt your victim. Of course, if there was intended to be any suggestion of lawful self-defence in what you told Dr Sharp, any claim to self-defence has been abandoned by your plea of guilty.

8 On 8 June 2013, a post mortem examination was performed by Forensic Pathologist, Dr Melissa Baker. According to Dr Baker, death was due to three factors - traumatic subarachnoid haemorrhage, intracranial right vertebral artery laceration and blunt impact to head and neck. In her opinion, the traumatic subarachnoid haemorrhage occurred as a result of a laceration of the intercranial portion of the right vertebral artery subsequent to blunt impact to the right side of the head and neck. She stated that a subarachnoid haemorrhage of this nature is typically associated with a blunt force injury to the neck, such as a blow with a fist. It occurs as a result of a tear or laceration to an artery. Dr Baker described evidence of significant blunt impact to the right side of the head and neck suggestive of rotational acceleration of the head being the mechanism of injury. Death typically occurs rapidly (immediately or within minutes). Toxicology results indicated a blood alcohol concentration of 0.25 per cent in blood and 0.29 per cent in vitreous humour. Quite clearly, Mr Starling must have been significantly intoxicated when struck.

9 The species of manslaughter to which you have pleaded guilty is manslaughter by unlawful and dangerous act. By your plea you have acknowledged that you had no lawful excuse - such as self-defence - for striking the blow that you did. Moreover, your plea is an admission that a reasonable person in your position would have realised that, by striking the blow, Mr Starling was being exposed to an appreciable risk of serious injury.

10 I received a number of victim impact statements. Angel Starling, the deceased's seven year old daughter, spoke of her sadness at the loss of her father, and accompanied her statement with drawings of her tearful self and of her father smiling. Marna Starling, the older daughter of the deceased, recorded her heartbreak at the loss of her father. John Starling senior spoke of the impact that the death of his son had upon him, and of the fact that his deceased son had been the last male capable of carrying on the Starling name. Jan Nicholls, his mother, described the shock and depression caused her by her son's death. His de facto partner of eight years, and mother of his children, Cathy Douglas, spoke of her loss and that of her children. And Mr Starling's sisters, Natasha White - who read her statement aloud - Cassandra Worboys and Therese Ochtman, all spoke eloquently of the devastating effect that their brother's death has had upon them. I take these statements into account as showing the impact of your offence on each of these victims.

11 I also received a number of documents tendered by your counsel in support of the plea made on your behalf. Thus I have read and - so far as it is legitimate to do so - taken into account letters written by your mother (her letter of 30 March 2015 being a most touching missive); the mother of your former de facto partner; and of Carmen Miller and Terry Foley. I also received a Youth and Advocacy Certificate of Achievement dated 6 November 2012, and several certificates demonstrate that you have done courses in first aid (and other disciplines) whilst in prison. Your efforts in that regard are to be commended. I have also had regard to a report of Mr Gerry Egan, a psychologist and clinical hypnotherapist, dated 4 June 2013; to a progress report of Uniting Care dated 31 August 2009; and to documents from Tabor House relating to your treatment for substance abuse. Your counsel also tendered a letter from Dr Jill Ramsay dated 18 May 2011, and a GP Mental Health Care Plan dated 26 November 2012, to which I have had regard. There are three reports from Dr Aaron Cunningham, forensic psychologist, dated 4 October 2010, 18 July 2011 and 19 August 2013, the contents of which I have taken into account; and, as I have said, there is a report from Dr Reid, which I have taken into account.

12 Mr Sharp, you were born on 6 October 1992. You were aged 20 years at the time of your offending, and are now aged 22. Your youth when you offended - and now - is relevant to the sentence that I must impose. Rehabilitation is important, and the weight to be given to general deterrence is, to some extent, reduced. You are not, however, a first offender, and there is no realistic sentencing alternative other than imprisonment.[1] I intend to reflect your youth and prospects of rehabilitation both in the head sentence and in the non-parole period I impose.

13 You are one of eight children born of your mother. You told Dr Reid that your step-father beat you to an extent that you were sometimes unable to go to school. You cannot read or write, and were prescribed medication for Attention Deficit and Hyperactivity Disorder. It appears that you have had recurring problems with drug and alcohol abuse, and have suffered from anxiety, depression and paranoid ideation. You have two children, aged four and two years respectively. Their situation, and your contact with them, is outlined in a report dated 24 March 2015 from the Department of Health and Human Services. I note that you are estranged from their mother. You dropped out of school in year 7, and then studied woodwork and metalwork for a year. Later, you picked potatoes for a couple of years.

14 You were apparently diagnosed in primary school as having an intellectual disability, and had a tutor who sat with you in class between grades 3 and 6. Dr Cunningham has assessed your intelligence as placing you into the intellectually disabled range. He notes that you have been the recipient of a disability support pension based on your disability. He discussed your abuse of alcohol, cannabis and methylamphetamine, and your anxiety, depression and paranoid ideation, perhaps precipitated by abuse at the hands of a neighbour when a child. In his report of August 2013, Dr Cunningham expresses the opinion that, due to your 'intellectual impairment', you 'would be more vulnerable and susceptible to negative influence in an adult prison environment'. Given your intellectual impairment, general deterrence must be sensibly moderated in your case, and I have endeavoured to reflect that moderation in the sentence that I impose. Moreover, although as I understand him, Dr Cunningham does not explicitly say so, I am prepared to infer that your intellectual impairment will make imprisonment more burdensome for you than for a person without your impairment.

15 Dr Reid noted that you have had episodes of major depression in the past. He thought it possible that your substance abuse has served to perpetuate mood disturbance. Although you presently do not appear to be depressed, Dr Reid thinks that the custodial environment might place you at a higher risk of relapse into depression than a non-custodial environment. Your history might accentuate the distress that you feel in protection (the circumstances of which your counsel described in his plea). Dr Reid opines that your hearing of 'voices' probably does not reflect psychotic disorder, and that anti-psychotic medication that has been prescribed is probably being used for its sedative qualities. He also noted the evidence of your intellectual impairment.

16 You have a number of prior convictions and findings of guilt, most of which - apart, perhaps, from showing an attitude of disobedience to the law - are largely irrelevant to the task of sentencing you for the crime of manslaughter. It is disturbing, however, that you were convicted of unlawful assault in the Magistrates' Court at Ballarat on 15 May 2013, and sentenced to a community correction order, just three weeks before the fatal attack on Mr Starling. You also have a conviction for public nuisance imposed on 6 October 2011 by the County Court in its appellate jurisdiction. The offence involved a particularly unpleasant episode where you took a pet rabbit from a female at a bus stop, wrung its neck and threw it against a bus shelter. Although, of course, you are not to be punished again for your earlier offences, those convictions do - notwithstanding your intellectual impairment - cast some light on your moral culpability for the present offence, your prospects of rehabilitation and your criminal propensities, and thus the need for community protection. Moreover, you are not entitled to the leniency that a first time offender in your situation would attract.[2] Despite your impairment, specific deterrence is, in my view, of a deal of importance in light of those convictions. The sentence I pass must be such as to discourage you from further resort to unlawful violence, although, of course, I must, given your youth and intellectual impairment, not give this factor undue weight. You also have some subsequent convictions, a matter to which I will later return.

17 You pleaded guilty after a contested committal which, it seems, was a vehicle for testing the strength of the case against you. Indeed, although you pleaded not guilty at the end of the committal, you pleaded guilty in this court at the first post-committal directions hearing. In the circumstances, I regard the plea as relatively early. Moreover, your plea has a utilitarian benefit. Witnesses have been spared the ordeal of giving evidence, and the community has been spared the expense of a trial. Furthermore - and notwithstanding the account you gave to Dr Reid - in my view the plea reflects your remorse for your actions. There was no attempt by you to raise a claim of lawful self-defence at a trial or to cast blame on Mr Starling. I intend to ameliorate significantly the sentence that I would otherwise have passed because of your plea of guilty. People in your situation must be confident that a plea of guilty will result in a real and palpable 'discount'.

18 Although, as I have said, general deterrence must be sensibly moderated, it remains an important consideration in the sentence I am to pass. I am bound to consider your youth and prospects of rehabilitation to be relevant, but to some extent they must be subjugated to general deterrence (and other considerations) given the seriousness of the offence.[3] I do not lose sight of the fact that your offence was constituted by one blow, and was not a protracted and vicious attack. Nor do I lose sight of the fact that you would not have foreseen that death was a probable consequence of your actions. But as I have said, that blow was struck a mere three weeks after you had been sentenced for assault. It robbed Mr Starling of his life. Thus, though I must be careful not to give general deterrence too much weight because of your youth and your impairment, it remains an important consideration, as does the need for just punishment and denunciation of your conduct.

19 As I have mentioned, your prior convictions bear on the leniency that might otherwise have been afforded to a first time offender, and bear on your prospects of rehabilitation. Despite your youth, it would be foolishly optimistic to regard those prospects as good, but unjustifiably cynical to describe you as beyond reclamation. Although labels are often unhelpful in the present discourse, at best I would regard your prospects of rehabilitation as moderate.

20 I take your youth and prospects of rehabilitation into account in fixing the head sentence, and also in fixing the length of the non-parole period. Your convictions subsequent to the present offending are relevant, first, to whether a non-parole period should be fixed at all (and clearly one should); and, secondly, to the length of any non-parole period to be imposed.

21 You were sentenced in the County Court at Ballarat on 23 August 2013 to a total effective sentence of two years' imprisonment, with a non-parole period of 12 months, on charges of armed robbery and associated offences, and are currently undergoing sentence. At the Magistrates' Court at Ballarat on 29 January 2014 you were further sentenced to an aggregate sentence of three months' imprisonment for criminal damage. (I also note that at the Magistrates' Court at Melbourne on 3 March 2014 you were ordered to pay an aggregate fine of $8,647.30, or be imprisoned for 60 days, in relation to outstanding warrants.) Both of these sentences of imprisonment were ordered to be served concurrently with each other and with the County Court sentence. The net effect is that the non-parole period expired on 22 August 2014, and the head sentence will expire on 22 August 2015.

22 You went into custody on 23 August 2013, so that there is no pre-sentence detention referable to the offence to which you have pleaded guilty in this court. Nonetheless, in fixing the sentence I am to pass upon you, I take into account the period that you have been in custody since the expiration of the non-parole period and today's date.[4] By the time I come to sentence you, you will have been in custody for some 19 months. Totality is important. I must, as best I am able, ensure that the aggregate of the sentence that I pass, and the sentence you are undergoing, adequately reflects the totality of your offending.[5] Despite you having been on bail at the relevant time, I will order that the sentence that I impose will be served concurrently with the sentence you are undergoing.[6] It will take effect from today. Thus, if you are required to serve the whole of the head sentence that I impose, it will mean that you will have spent more than nine and a half years in custody. If you are released as soon as eligible for parole, you will have spent more than five and a half years in custody, which is a long time for a man of your age. The non-parole period I have fixed is the minimum term that I regard that justice requires you serve before being eligible for conditional release under supervised parole. I have fixed a non-parole period which provides the potential for you to be under an extended period of supervision in the community.

23 Mr Sharp, for the manslaughter of John Starling, I sentence you to be imprisoned for eight years, and I fix the period of four years as the period that you must serve before being considered eligible for release on parole.

24 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty, I would have sentenced you to be imprisoned for 10 years, upon which I would have fixed a non-parole period of seven (7) years.

[1] R v Mills [1998] 4 VR 235, 241; DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125, 132 [22].

[2] R v O'Brien and Gloster [1997] 2 VR 714.

[3] DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125.

[4] R v Renzella [1998] 2 VR 88; Wheldon v The Queen [2011] VSCA 83; (2011) 31 VR 297.

[5] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62-3.

[6] Sentencing Act 1991, s 16(3B).