The Queen v Veerman [2015] VSC 193

3 On the morning of his death, Mr Scanlon left his home in Kilsyth, to walk to a Salvation Army Centre in Mooroolbark, in order to pick up some food vouchers. His partner, Kristy Coyne, expected him to return home that day; he never did.

4 Various people saw you and Mr Scanlon together that day. You were first seen greeting each other, a few blocks from your parents' house in Mooroolbark. You were subsequently seen together at the Salvation Army Centre, and at the shops, as well as driving around in your car.

5 Around 1.30 pm, Mr Scanlon texted a friend, to say that he would be home around 2.30 pm. Half an hour later, Ms Coyne spoke to Mr Scanlon on the phone; he said he had picked up the food vouchers and was on his way home. That seems to have been the last time anyone other than you spoke to Mr Scanlon.

6 Twelve days later, a bushwalker discovered Mr Scanlon's body in a forested area of the Dandenong Ranges National Park, at Olinda.

7 Due to the body's advanced state of decomposition, the forensic pathologist was unable to determine the precise cause of Mr Scanlon's death; however, the injuries were consistent with death occurring as a result of neck compression.

8 The precise circumstances of the killing are unclear. You have given no account of what happened between you and Mr Scanlon. There were no witnesses to what occurred. You now accept that you were the only person responsible for Mr Scanlon's death.

9 The prosecution and defence have agreed to the following matters, for the purposes of sentencing you. There is no suggestion that Mr Scanlon was unwilling to drive out to the Dandenongs, or to walk with you along the track to the remote area where he died. There is no evidence of any pre-existing animosity between the two of you. It is not suggested that you had any intention to harm Mr Scanlon as you travelled together, or that his killing was in any way pre-meditated. Mr Scanlon was killed near to where his body was found. What happened between the two of you once you got there is not known to the court.

10 Although the most likely cause of Mr Scanlon's death was neck compression caused by blunt force trauma, there is no evidence as to how that injury was inflicted, or over what period of time. By reducing the charge from murder to manslaughter, the prosecution has accepted that you committed one or more unlawful and dangerous acts, without any intention of killing or causing really serious injury to Mr Scanlon.

11 Your counsel suggested that there must have been some sort of argument between the two of you, something that prompted you to act. But the court would be simply speculating in coming to such a conclusion.

12 It is possible that drugs and alcohol played some role in what happened. You and Mr Scanlon were both regular drug users.

13 Post-mortem toxicology reports showed that Mr Scanlon had cannabinoids and ethanol in his body, but the extent of decomposition made interpreting those results difficult. To what extent he may have been affected by alcohol or drugs is unknown.

14 There is evidence that suggests you had consumed some beer. One whole stubby, and fragments from a second one, were found near Mr Scanlon's body; they contained samples which were a strong match to your DNA. When you drank them, and whether you had drunk anything else earlier that day, is unknown.

15 Dr Adam Deacon, a consultant psychiatrist, assessed you in June, August and December 2011, in relation to your sentencing for a dangerous driving offence that you committed the day after you killed Mr Scanlon. Dr Deacon prepared an updated report in March of this year, for the purposes of this plea.

16 You told Dr Deacon that you had sporadically used numerous illicit drugs since your adolescence. You said that you used drugs to provide relief from your severe depression. Prior to the events of March 2011, you had been using intravenous amphetamine and cannabis on a daily basis, with occasional LSD usage. You were unable to tell Dr Deacon precisely what you had taken on particular days. Given the history that you gave to Dr Deacon, it is very likely that you were substance-affected at the time you killed Mr Scanlon; but it is not possible to be more specific about how much you had taken and what role that may have played in your offending.

17 The position is complicated by your mental health history. There is evidence that you experienced a marked deterioration in your mental health over the couple of years leading up to this offending. During 2010, you were admitted to the Maroondah Hospital Psychiatric Unit on two occasions - the most recent of which was in August 2010. A range of different diagnoses were given, including schizophrenia (with depression component), schizoaffective disorder, drug-induced psychosis, poly-drug use, and antisocial personality traits. Dr Deacon says that the uncertain diagnoses by hospital staff may have been caused by your presenting in a substance-affected state; that would have made it difficult for hospital staff to separate out the effects of drugs and any underlying psychotic illness.

18 You were prescribed several types of antipsychotic medication, but it seems that you stopped taking your medication in late 2010.

19 Your mother reported a marked deterioration in your mental state in the fortnight prior to the March offences. In particular, she said you were acting in a paranoid manner, and your self-care deteriorated. Paranoia is a symptom which was noted as having been present on your first psychiatric hospital admission, in March 2010.

20 In his 2011 reports, Dr Deacon described you as a poor historian, who has consistently reported being unable to remember much of what happened in the period prior to and around the offending. His 2015 report does not contain any further detail about that period, or about what happened between you and Mr Scanlon.

21 Dr Deacon noted in his December 2011 report that you had been assessed in prison, and in the Thomas Embling Hospital, as having very severe depression and psychotic illness.

22 In that same report, Dr Deacon expressed the following opinion:

It is very likely that Mr Veerman was mentally unwell at the time of the offence, but it has proven very difficult to reliably confirm the precise nature of his presentation, and confirm a diagnosis. Illicit drug use is also a confounding factor. He was likely to have been substance affected with a combination of amphetamine and cannabis. It has not been possible to delineate the relative influence of substances on his mental state.

23 That opinion was expressed in relation to the dangerous driving offence on the 8th of March. However, I accept that the opinion is equally applicable to your offending on the 7th, the day you killed Mr Scanlon.

24 It is not suggested that you were so mentally unwell that you were not even aware of what you were doing. But given the lack of any animosity between you and Mr Scanlon, the fact that you had been acting in a strange, paranoid manner in the preceding weeks, and Dr Deacon's opinion, I am satisfied on the balance of probabilities that your perception and judgment around the time you killed Mr Scanlon are likely to have been compromised to some degree by your mental health problems, particularly by your paranoid psychosis.

25 Although drugs may also have played some role in your offending, I cannot be satisfied beyond reasonable doubt that you killed Mr Scanlon whilst in a drug-induced psychosis.[1]

26 Given the lack of evidence as to what actually happened in the bush that day, it is not possible to attribute a particular proportion of responsibility to your mental illness, as opposed to your voluntary drug consumption. In the circumstances, there should be some, albeit only a moderate, reduction in your moral culpability due to your mental illness.

27 You partially concealed Mr Scanlon's body with branches and bark, and left it in a remote location. That is an aggravating feature of the crime, in that it prevented his body from being found for almost a fortnight. In the meantime, his family and friends were looking for him and were distressed by his absence; they had no idea where he had gone, or what had happened to him.

28 The maximum penalty for manslaughter is 20 years' imprisonment. However, the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff that can be applied to such cases. It is therefore necessary to have regard to the particular circumstances of the offence, and the factors personal to you, in determining the appropriate sentence.

29 Before I consider your personal circumstances, I want to say something about the effect your actions have had on others.

30 Kyal Scanlon was 29 at the time of his death. He was the eldest son of Lindy and David Scanlon, and the brother of Casey Scanlon. He and Kristy Coyne had been together for 13 years, and had five children together. At the time of his death, the children's ages ranged from 3 to 12 years.

31 Victim impact statements were provided to the court by Ms Coyne and her children, and other relatives and friends of Mr Scanlon. They are devastated and angry at the loss of someone they loved dearly; they feel that their lives will never be the same again. Many of them are still having nightmares and trouble sleeping. Ms Coyne is having to raise the children without Mr Scanlon's support, and having to go through all the milestones of their childhood without being able to share them with him. Mr Scanlon was very active in the lives of his children and his nieces and nephews; the children miss all the games and other fun activities they would do with him.

32 The period in which Mr Scanlon was missing, when his loved ones had no idea what had happened to him, was a particularly difficult time for them. That uncertainty has made some of them fearful if somebody else in their family is late coming home.

33 You were born in January 1978, the third of four children. You are now 37.

34 After leaving school at the end of Year 10, you worked at various jobs between 1995 and 2005. Then you went back to complete your education, obtaining a Bachelor of Environmental Science degree in 2008 in Warrnambool. After you left university, you had trouble finding employment.

35 You were in a seven year relationship with the mother of your two children, who are now aged about 6 and 8 years old. That relationship ended around late 2009. You have not had any contact with your children for several years. Since the breakup of your relationship, you have had no stable accommodation.

36 The failure of your relationship, the loss of some friendships, and your inability to find work, all seem to have contributed to your ending up on a downward spiral, in which you felt increasingly isolated and depressed, and took more drugs to try to numb the pain. This also seems to have coincided with the beginning of your mental health problems.

37 Since your arrest, you have been thoroughly assessed in prison and at the Thomas Embling Hospital. Dr Deacon reports that you originally presented in prison suffering from a very severe depressive and psychotic illness. You were not accepting of the fact that you were mentally unwell. Initially, you were not coping well in the prison environment, and Dr Deacon thought you would find serving your current sentence (for dangerous driving) more arduous than a prisoner without your mental health problems.

38 However, your mental health has improved significantly over the past couple of years, since you have been taking your current antidepressant and antipsychotic medications. You have also gained more insight, and become more accepting of the fact that you have an enduring mental illness, which requires indefinite treatment. In his March 2015 report, Dr Deacon describes you as now coping well in prison. It is not suggested as part of this plea that your mental health problems will make time in custody more onerous for you than for a prisoner without such problems.

39 You were originally charged with murder. The day after a jury had been empanelled at your murder trial, the prosecution reduced the charge to manslaughter - to which you pleaded guilty.

40 You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. The family and friends of Mr Scanlon have been spared what would have been a very traumatic trial for them.

41 Apart from any remorse which is implicit in your plea, there is no evidence of any genuine remorse. You hid the body, and have never told anyone what happened to Mr Scanlon. When family and friends of Mr Scanlon visited you on a number of occasions in custody, you repeatedly asserted your innocence of any involvement in Mr Scanlon's death. Right up until the time you pleaded, you were still claiming that Mr Scanlon had been killed by unnamed persons connected with his drug-dealing activities, and that you had no involvement in his death. Your failure to disclose what you have done with the personal possessions which you removed from Mr Scanlon's body (including a silver chain given to him by his children, which is of great sentimental value to his family), also demonstrates a lack of remorse.

42 You have no prior convictions. In 2010, you appeared at the Ringwood Magistrates' Court, in relation to a charge of possessing a prohibited weapon. That related to an ornamental sword, which the police located when they attended your parents' home in response to a siege situation led to one of your psychiatric hospital admissions. You were fined without conviction in relation to that charge.

43 You do have subsequent convictions, most of which arose out of events that occurred on the two days immediately after you killed Mr Scanlon. On 8 March 2011, you hit Kieran Bailey, a cyclist, as you were driving along Mount Dandenong Road. You drove off without helping him, or calling emergency services; he died two days later. You drove immediately to a nearby hotel carpark, where you set fire to your car, in an attempt to destroy any evidence that you had hit Mr Bailey. You pleaded guilty to a number of charges, the most serious of which were dangerous driving causing death, failing to render assistance after an accident, and arson.

44 After taking into account the extent to which your mental illness played a role in that offending, the County Court sentencing judge sentenced you on 16 December 2011 to a total effective sentence of 5 years and 3 months' imprisonment, with a non-parole period of 3 years.[2] On appeal, you were resentenced to the same total effective sentence and non-parole period.[3]

45 Your non-parole period for the other offences expired in early March 2014,[4] and you are still serving that sentence. You have not been granted parole, on account of the pending charge relating to Mr Scanlon's death.

46 The law requires me to have regard to your current sentence circumstances, in determining what is an appropriate sentence for this offence, particularly with regard to the principles of totality.

47 The need for both general and specific deterrence is reduced to a small extent, because of your mental illness. Nevertheless, there is still a need for denunciation and just punishment.

48 You are fortunate to have the support of your parents and at least one of your siblings. According to Dr Deacon, your mental health problems are amenable to treatment, and you are likely to remain well as long as you stick to your treatment regime. You have been undertaking courses and keeping yourself gainfully occupied whilst in prison. You are likely to need ongoing psychiatric support, when you are eventually discharged from prison. Provided you keep taking your prescribed medication, and do not use illegal drugs, your prospects of rehabilitation are reasonable. But, given that you have used illegal drugs throughout your adult life, it is likely to take substantial effort on your part to remain drug-free, once you are released from the structured environment of prison life.

49 For the manslaughter of Kyal Scanlon, I sentence you to 9 years' imprisonment.

50 I fix a period of 6 years before you become eligible for parole.

51 I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to a total of 11 years' imprisonment, with a minimum non-parole period of 8 years.

[1] If there had been evidence of a drug-induced psychosis on 7 March, that would have been an aggravating feature, given that your hospital admission in August 2010 was for a drug-induced psychosis involving a siege situation at your mother's house.

[2] DPP v Veerman, Daniel [2011] VCC 1960.

[3] Veerman v R [2012] VSCA 194.

[4] That took into account the period of 281 days which was declared as pre-sentence detention for those charges.