The Queen v Sheen [2016] VSC 235

2 On 4 March 2016, you were re-arraigned and again pleaded not guilty to the charge of murder but guilty to the alternative charge of manslaughter. Your plea of guilty to manslaughter was accepted by the prosecution in full satisfaction of the indictment albeit on a factually contested basis. The contest essentially related to which form of manslaughter you should be sentenced for - unlawful and dangerous act or criminal negligence. I will return to this issue later in these reasons for sentence, but I have concluded that to the extent that it is necessary to categorise your offending, manslaughter by criminal negligence is the most appropriate description.

3 On 16 March 2016, at your plea hearing, you additionally pleaded guilty to two charges of possessing a drug of dependence, namely methamphetamine and 4-Butanediol. You also pleaded guilty to a number of summary offences including one count of possessing a prohibited weapon, namely a pair of knuckle dusters,[1] as well as one count of driving whilst disqualified.[2]

4 During your plea hearing I heard submission by the Crown Prosecutor Mr Lewis, followed by submissions made on your behalf by Mr Bayles of counsel.

5 The maximum penalty for the offences to which you have pleaded guilty are as follows:

(i) Manslaughter - 20 years' imprisonment; [3]

(ii) Failing to render assistance at the scene of an accident - 10 years' imprisonment;[4]

(iii) Possessing a drug of dependence - 5 years' imprisonment;[5]

(iv) Possessing a prohibited weapon without approval - 2 years' imprisonment;[6]

(v) Driving whilst disqualified - 2 years' imprisonment (for a subsequent offence).[7]

It is now my responsibility to sentence you for these offences.

6 On 4 April 2015, shortly after 4.30pm,[8] Mr Faull was in the vicinity of his home raking leaves outside 43 Howitt Avenue when he became aware of you riding your unregistered KTM 250 motorcycle along Howitt Avenue, initially in a south-easterly direction. The evidence indicates that you were riding at a significant speed given the confines of a residential street and that your motorcycle was quite loud.

7 What you were doing was seen by a number of witnesses and heard by the deceased man's wife, Glenys Faull, who was inside their home but could hear your motorcycle accelerating. The three main witnesses who observed what happened were Jake Freer and Billy Chemielewski, who were together in a car at the time in the driveway of 46 Howitt Avenue, and Mr Bruce Stevens, who was standing in the street. Mr Stevens subsequently drew three diagrams depicting the various stages of the incident as he witnessed them. There is some discrepancy in their accounts.

8 As you were riding in an easterly direction past where Mr Faull was standing in Howitt Avenue, it would appear Mr Faull effectively threw the rake he had been using in the direction of your motorcycle. The motion of throwing was apparently an underarm action and the rake made contact with the underside of your vehicle.

9 After that occurred your rode a short distance further up the street and then executed a U-turn. You then rode back in the direction of Mr Faull ultimately colliding with him, the impact of which caused him fatal injuries. The circumstances in which this occurred were in contention on the hearing of the plea to some degree.

10 What is objectively known and undisputed is that you rode your motorcycle toward where Mr Faull was and collided with him and that collision caused his death. At the time of the collision Mr Faull was on the north side of the road. One of the factual issues was whether or not the front wheel of your motorcycle was off the road and, if it was, for how long. I will return to that shortly, though I am not persuaded that for these purposes much turns on that issue. Certainly the witness, Bruce Stevens, to whom I have already referred, said he did not see the front wheel of the motorcycle come off the ground. Since it appears accepted that if the front wheel was off the ground you had much less control of the motorcycle, I cannot exclude the possibility that it was. In one way or another I am not satisfied that you had full control of the motorcycle when you collided with Mr Faull. Your lack of control is of significance.

11 It is known that after you collided with Mr Faull you and the motorcycle separated and the motorcycle slid some distance in a westerly direction, which the prosecution say resulted in scrape marks on the kerb. There are marks on the road and the edge of the gutter, which the prosecutor says demonstrate that the bike actually slid along the gutter for some 40 metres.[9] After you and the motorcycle came to rest you were seen by witnesses trying to re-start it and you may have moved it some distance in the process.

12 What occurred to the bike after you came off is relevant to the calculation of the speed you were travelling at the time you collided with Mr Faull. Part of the evidentiary material which was to be led at your trial was the expert evidence of Dr Mehegan, who is a collision reconstruction expert. Her primary conclusion was that at the time your motor cycle struck Mr Faull it was travelling between 68 and 73 km/h. The bike struck the right hand side of Mr Faull's body and his injuries are consistent with that. The speed she calculated depends on establishing that the motorcycle slid for a particular distance along the gutter at the edge of Howitt Avenue, leaving the observable marks. Because the basis on which Dr Mehegan calculated her speed is dependent on the marks on the kerbing, the speed at which you were travelling may need to be reduced. As the prosecutor very fairly conceded, it may not make a great deal of difference for this purpose. The fact is you have made a U-turn and accelerated at a speed which, on impact with Mr Faull, was enough to cause his death.

13 According to the prosecution's case, your motorcycle came to rest on the corner of the driveway of number 49 Howitt Avenue. This conclusion was reached based on a number of scrape marks located along the back kerb between number 47 and number 49.[10] Defence counsel however rejected the proposition that your motorcycle caused the scrape marks located along the back kerb.

14 Based on the friction coefficient adopted by Dr Mehegan to calculate the speed at which you were travelling when you struck Mr Faull, once the back kerb scrape marks are removed from the equation your alleged speed is reduced in the order of 10 kilometres an hour. Whilst I suspect your motorcycle did leave the marks, in all the circumstances I could not be satisfied about that beyond reasonable doubt.

15 It is worth noting at this point that there was a period of 13 days between the date of the accident on 4 April 2015 and the date at which the Major Collisions Investigation Unit of Victoria Police attended the scene to commence their investigations. That does cast some doubt on the origin and age of the scrape makes located on the back kerb and subsequently attributed to your motorcycle for the purpose of estimating your speed. Nonetheless, whether you were travelling at the speed alleged by the prosecution or 10 kilometres per hour less when you struck Mr Faull perhaps makes little difference. Your conduct was at the very least, criminally negligent.

16 As I have earlier, noted this incident began with you riding your motorcycle too fast and recklessly around the streets of suburban Corio. Your conduct obviously irritated the deceased man. Most unfortunately, as I described, as you rode past him he threw his rake at your motorbike. The rake made contact with the bike. It must be said, with regret, that throwing an item like that at a moving vehicle was most ill-advised and dangerous, particularly given that vehicle was a motorbike. However, that having happened without any mishap to you or your bike, you clearly decided that the action of Mr Faull required a response. And so you turned your bike toward him.

17 The action of Mr Faull in throwing the rake at the motor cycle is relevant in that it explains why you did what you did and, to a degree, that action was provocative. It is important to be clear however - Mr Faull's actions in no way excuses what you did. The incident could have stopped at that point and you could have remonstrated with him. The relevance of course is that it illustrates that your actions were not unexplained or gratuitous. They happened for a reason but, in reality, and tragically, you chose to follow one dangerous act with one of greater danger that ultimately caused death. Your reaction was, I accept, a spontaneous response to that incident and obviously you made a poor choice. I accept the submission made on your behalf that this incident happened very quickly.

18 Counsel on your behalf also submitted that Mr Faull may have unintentionally stepped into the path of your motorcycle in the cause of retrieving his rake. In my view that is not what occurred and I agree with the submissions of the prosecutor in relation to that issue. The deceased well knew you were on the road. When you turned around and rode back toward him it is extremely unlikely that he would have done anything to risk increasing the danger to himself. At all events you turned the bike around and you rode back toward the deceased. The result was that you collided with him and caused his death.

19 I propose to sentence you on the basis that after the rake had struck your motorcycle you did a U-turn and at some stage identified where the item that struck your bike had come from. You may have seen Mr Faull throw it - I am not able to say. Notwithstanding the submissions of your counsel that such a conclusion is not one I should come to, I am satisfied that you then rode your motorcycle in the direction of Mr Faull for the purpose of making him fear your presence and that he was exposed, at that point, to some physical risk from you. I make it clear however I am not satisfied that any physical harm to Mr Faull was your intention. I will sentence you on the basis that a loss of control by you of your motorcycle for whatever reason was the primary cause of the fatal collision.

20 You have pleaded guilty to manslaughter and, as I observed during the plea, in my opinion the best categorisation of your conduct is you owed Gary Faull a duty of care which you breached by your criminal negligence. Your actions were committed consciously and voluntarily and caused his death. I propose to sentence you accordingly.

21 The moral culpability of your conduct does require general deterrence, being the community's understanding of the consequences of this kind of conduct and specific deterrence, being your understanding of those consequences, to play a significant role in the sentence to be imposed on you. Those considerations are, however, not the only matters to be taken into account. I accept the submission made on your behalf that tragic as the consequences of your conduct were, your actions were not indicative of what Mr Bayles referred to as "entrenched criminality". Given an opportunity, I consider your life could change.

22 After a period of some 18 days you were arrested by police on 22 April 2015. You resisted police efforts to arrest you. You later participated in a record of interview. In many senses, it is sufficient to say that what you told the police about what occurred could not possibly be correct, and your counsel expressly accepted that to be so, submitting in his defence response before the jury that 'the things said in the record of interview are simply unlikely to be completely truthful.'[11]

23 At that stage, whatever remorse you feel now for your actions had not yet overtaken you.

24 Four victim impact statement were tendered from the following deponents:

25 Both Kim and Kelly Faull opted to read their statements in Court. John Burtt's statement was read by the prosecutor and I have read Gleny Faull's statement in chambers. These statements were, as I have already noted, compelling and they illustrate the pain you have caused Mr Faull's family and friends. They showed dignity and significant insight into this tragedy from a practical perspective. Their pain is both severe and irrevocable. Through your actions the life of Gary Faull was taken prematurely. Mr Faull's family have specifically noted the difficulties they have been caused not only by the incident that took Mr Faull's life but the investigation and court process that followed. I know the necessary court process is frustrating, difficult and doubtless offers little comfort to the victims of your crime. The effect of what happened on 4 April 2015 will be with these people for most, if not the rest, of their lives. As the law requires, I have taken the four statements into consideration in deciding upon the sentence I will soon impose on you.

26 As I have earlier noted you have also pleaded guilty to several unrelated matters being two charges of possessing a drug of dependence namely methamphetamine and 4-Butanediol. You also pleaded guilty to a number of summary offences including one count of possessing a prohibited weapon, being a pair of knuckle dusters,[12] as well as one count of driving whilst disqualified.[13]

27 The circumstances giving rise to the charges of two counts of possessing a drug of dependence and one count of possessing a prohibited weapon relate to a backpack left at the scene of the collision which belonged to you. Your associate, Matthew Robertson, having assisted you to flee the scene, returned to Howitt Avenue and attempted to retrieve this backpack.[14] Mr Robertson's attempts were ultimately unsuccessful and the bag was handed to and inspected by police.

28 Contained within the backpack, amongst other items, were a pair of black knuckledusters, 5.5 grams of methamphetamine and 11.5 grams of 4-Butanediol. As already mentioned, you pleaded guilty to two charges pertaining to the discovery of these items within the backpack.

29 It is worth mentioning at this point that the presence of other items found in the backpack has been the source of some disagreement between defence and prosecution. The prosecution submit that given two iPhone mobile phones, numerous small resealable plastic bags, two glass smoking pipes and three digital scales were discovered within the backpack, trafficking cannot be excluded as the purpose for which you possessed the drugs.[15] I agree with the prosecution that trafficking cannot be excluded and note the maximum penalty of five years for trafficking in a drug of dependence under the relevant legislation.[16] I have taken this into consideration in deciding the sentence I will soon impose on you.

30 Disturbingly, but perhaps not unpredictably, as at the date of the collision you had had your driving licence cancelled and were consequently disqualified from driving. You were therefore summarily charged with driving whilst disqualified to which, as already noted, you pleaded guilty. I will accordingly make the necessary ancillary orders disqualifying you from holding a driver licence for a further period which I will shortly specify.

31 It is significant to begin a consideration of your plea of guilty to manslaughter by noting that you were originally charged with the murder of Gary Faull and by 14 March 2016, the trial of that charge had commenced. After the trial had begun and some evidence had been presented before the jury, further discussions between the parties occurred which resulted in you pleading guilty to the charge of manslaughter for which, among other matters, you are now to be sentenced.

32 On 19 November 2015, you had apparently offered to plead guilty to the lesser offence of dangerous driving causing death. That was before the committal proceedings had commenced. The offer was rejected by the prosecution.

33 On your behalf, Mr Bayles relied on the offer made in November 2015 as being a sign of your willingness to accept responsibility for what you did in causing the death of Mr Faull. He submitted that you were therefore entitled to what he described as the 'full discount' made available by your plea of guilty. Mr Lewis, on behalf of the prosecution, took issue with that submission arguing your offer was what he described as the 'bare minimum'.

34 In some respects the debate was a little unseemly. In my view, you were willing to accept legal advice and offered to plead guilty to the charge you were advised to plead guilty to. This case is unusual to a degree in that you were charged with murder. All I would say about that is the prosecution's decision to accept your plea to manslaughter was appropriate. Having considered the circumstances, and read Professor Ogloff's report, I do regard your offer to plead guilty in November of last year, coupled with your plea of guilty to manslaughter, as a willingness to accept responsibility for what you did and I will give you the appropriate credit for that. I do not regard your willingness to accept that responsibility as a minor sentencing consideration.

35 Section 6AAA of the Sentencing Act requires that the discount you receive for your plea of guilty be specified and I will comply with that requirement.

36 Your prior offending began at the age of 14 years and has persisted until the present. The record is filed with the Court and consists of the following:

(a) In August 2007, you were charged with theft and sentenced to a good behaviour bond without conviction and fined.

(b) In January 2008, you were charged with criminal damage and sentenced to a good behaviour bond without conviction and fined.

(c) In January 2010, you were charged with one count each of unlicenced driving, fail to wear a motor bike helmet, fail to keep left of median strip and fail to stop vehicle on police request. You were subsequently sentenced without conviction to a good behaviour bond, fined and disqualified from driving for a period of three months.

(d) In April 2010, you were charged with one count each of traffic cannabis, possess cannabis and use cannabis. Again, no conviction was recorded and you were placed on probation with reporting conditions and fined.

(e) In May 2010, you were charged with one count each of deal with property suspected to be the proceeds of crime, criminal damage and possess a controlled weapon without excuse. You were again placed on probation and fined. No conviction was recorded.

(f) In February 2011, you were charged with intentionally cause serious injury, unlawful assault and intentionally destroy property. You were sentenced with conviction to a Youth Supervision Order for a period of 12 months and fined.

(g) In August 2011 you were charged with obstructing police. No conviction was recorded and you were fined.

(h) In September 2011 you were charged with unlicensed driving and drink driving. You were fined without conviction and had your licenced cancelled for six months.

(i) In May 2012 you were charged with being drunk and disorderly in a public place and possess cannabis. No conviction was recorded and a forfeiture order made.

(j) In February 2012, you were charged with one count of driving whilst suspended, two counts of use unregistered motor vehicle and one count each of use display plate other than issued plate, exceed speed limit by more than 10 km/h but less than 25 km/h, fraud relating to altering an authorised display plate, learner driver driving without experienced driver, drive without 'L' plates displayed and fail to answer bail. You were subsequently fined, convicted and disqualified from driving for a period of 15 months.

(k) Finally, in February 2012, you were charged with one count each of dangerous driving whilst pursued by police, drive in a manner dangerous, handle stolen goods, failure to displace assigned plates, use display plates other than those issued, possess weapon without excuse, as well as two counts each of drive whilst suspended and use an unregistered motor vehicle.

37 As has been pointed out, apart from the offences of intentionally cause injury and unlawful assault in February 2011 when you were aged 17 years of age your other offence, whilst numerous, can be regarded as relatively low-grade concerning drugs and driving offences. However, they are relevant both to demonstrate a level of disregard for authority and, in the case of the driving offences, are directly pertinent to this matter as the present offending arose from the use of a motor vehicle.

38 You were born on 1 August 1993 and you are now 22 years of age. You were 21 years when this offence occurred. You are a young offender and, as I have made clear, I am most interested in your prospects of rehabilitation.

39 You have had previous court appearances and, as I have already noted, your criminal record is an unenviable one.

40 You are obviously still a young man and the evidence indicates that your past has been difficult. You have been in care for most of your life, your mother having given up your custody and that of your brother Matthew, who is three years your senior, when you were both in early childhood. You, by implication, came under the guardianship of the State. It seems likely that you were physically mistreated by your mother.

41 You grew up in the Geelong area and you apparently have no positive memory of living with your mother. Until the age of 10 you had been in foster homes and unit accommodation and then, for a time from the age of 10 years, you resided with Michelle Conway and her family. While you were with that family you completed your primary education. Ms Conway works for the Department of Human Services and has worked with high risk adolescents for some years as a foster carer.

42 From there you went to a special school for children experiencing difficulty with mainstream education and you, whilst there, reached the stage of year 10 at the age of 17. It was at this time the Conway family moved from the Geelong area, but you and your brother wanted to stay, and you did so residing in unit style accommodation.

43 For another year or so you again lived with the Conway family and during that time worked for a diesel mechanic. Since leaving school you have also been employed as a butcher, having commenced, but not completed, a butcher's apprenticeship. Upon deciding you would prefer working in the outdoors you gained work as a concreter. During discussions with your counsel on where you see yourself following your release from prison, you have expressed an interest in property development.

44 Your brother Matthew is in Ireland, and has been for about 2 years. That means that at present you have no people around you providing any kind of family support.

45 During the course of the plea I suggested that you should be clinically assessed given your background and the matter was adjourned so that could occur. On 21 April 2016, a report was provided to the Court by Professor Ogloff, he having seen you on 14 April 2016 and read the relevant materials. Professor Ogloff reviewed your personal background and your difficult upbringing, which is not to be underestimated. It appears you have benefited significantly from your relationship with Ms Conway.

46 In Professor Ogloff's opinion, you dealt with your early developmental difficulties by abusing alcohol and drugs to excess from about the age of 14 years.

47 You now suffer from a significant degree of anxiety and your time in custody for this matter has not been easy, it being your first time in a custodial setting. You have been physically assaulted on at least one occasion and, it seems to me, that, confronted with the realities of your life so far, you find your situation very depressing. To your credit, it seems you try to maintain a positive attitude and so long as you receive the right assistance you have some good prospects in the future.

48 Professor Ogloff assessed your prospects of rehabilitation as good. However, as I pointed out to your counsel, if upon your release you are tempted to lapse back into drug offending and serious traffic offences, you can expect your life to again veer away from any stability with the likely outcome of further significant custodial sentences. You now have a record you should try to leave behind. Any repeat of this kind of conduct will result in very serious and possibly irrevocable consequences.

49 During the hearing of the plea, there was some issue about the extent to which you felt remorse for what had occurred, most importantly the death of Mr Faull. Your immediate conduct after the incident did not demonstrate any concern for Mr Faull's welfare - your sole focus was to leave the scene and, with the assistance of Mr Robertson, you did so.

50 However, in addressing the issue of remorse in his report, Professor Ogloff described that you were regretful and tearful when he questioned you about the incident. He also reported that it has now become clear to you how seriously your actions have affected others, not only by causing the death of Mr Faull but by the impact of that event on his friends and family. Professor Ogloff concluded that you are sincere in your remorse and feelings of regret, not just for yourself but for Mr Faull and his family. Professor Ogloff is very highly regarded and experienced and I am content to act on his opinion on this issue. I will sentence you on the basis that you are remorseful for what you have done.

51 In view of all the circumstances and bearing in mind your age and the importance of the principle of totality, I therefore come to the conclusion that I will impose the following sentences on you. On the charge of manslaughter you will be sentenced to 7 years' imprisonment. That will be the base sentence. On the charge of failing to render assistance at the scene of an accident you will be sentenced to 6 months' imprisonment. On each of the two counts of possessing a drug of dependence you will be sentenced to 12 months' imprisonment. On the charge of possessing a prohibited weapon you will be sentenced to 1 month imprisonment. Finally, on the charge of driving whilst disqualified, you will be sentenced to 4 months' imprisonment.

52 I direct that the following portions of the sentences be served cumulatively with the sentence on the charge of manslaughter:

• On the charge of failing to render assistance - 4 months;

• On each of the two charges of possession of a drug of dependence - 3 months;

• On the charge of driving whilst disqualified - 2 months.

53 The result of those directions is a total effective sentence of 8 years' imprisonment.

54 In relation to the fixing of period to be served before you become eligible for release on parole, your counsel urged me to approach that with a view to your prospects of rehabilitation. Having regard to Professor Ogloff's report and the support it offered this submission, I have decided upon a non-parole period which contemplates your rehabilitation as an important consideration. I therefore direct that you serve a period of 5 years before you become eligible to apply for release on parole.

55 In addition, you will be disqualified from driving a motor vehicle for a period of 4 years, with the period of disqualification to commence on 12 May 2018.[17] That will mean for a significant period after your release on parole you will be unable to drive a motor vehicle. I realise that will make life more difficult, but it will be a reminder of the seriousness of what you have done.

56 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to the relevant charges the total effective sentence I would have imposed on you would have been 11 years' imprisonment with a minimum term of 8 years.

57 Pursuant to s 18 of the Sentencing Act 1991, I declare that the number of days of pre-sentence detention to be reckoned as time already served as 233 days, including this day, and I direct that those detail be entered in the record of the Court.

[1] Section 5AA Control of Weapons Act 1990 (Vic).

[2] Section 30 Road Safety Act 1986 (Vic).

[3] Section 5 Crimes Act 1958 (Vic)

[4] Section 61(3) Road Safety Act 1986 (Vic)

[5] Section 73 Drugs, Poisons and Controlled Substances Act 1981 (Vic) - Where the Court is not satisfied that the offence was not committed for any purpose related to trafficking in that drug.

[6] Section 5AA Control of Weapons Act 1990 (Vic)

[7] Section 30 Road Safety Act 1986 (Vic)

[8] Accused Sheen left the Detroit Crescent Laundromat at 4.30pm and headed towards Kosciusko Avenue Corio. See Para [7] of Summary of Prosecution of Opening dated 4 February 2016

[9] See Para [14] of Summary of Prosecution Opening dated 4 February 2016.

[10] See plan drawn by Detective Sergeant Trevor Collings, Exhibit C on the plea.

[12] Section 5AA Control of Weapons Act 1990 (Vic).

[13] Section 30(1) Road Safety Act 1986 (Vic).

[14] On 8 February 2016 Mr Roberston pleaded guilty before me to one charge of attempting to pervert the course of justice for which he was sentenced to a Community Corrections Order.

[15] Pursuant to section Part 1 of Schedule 11 of Drugs, Poisons and Controlled Substances Act 1981 (Vic), 3 grams is the trafficable quantity for methamphetamine.

[16] Section 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Maximum penalty is 15 years' imprisonment.

[17] Section 89B Sentencing Act 1991 (Vic).