Vincec v The Queen [2018] VSCA 18

CRIMINAL LAW - Appeal - Sentence - Unlawful and dangerous act manslaughter - Applicant sentenced to eight years' imprisonment with non-parole period of five years - Confrontation in busy city street at night - Death caused by single punch to head - Victim fell to ground and suffered fractured skull and brain damage - Whether reasonably arguable that sentence manifestly excessive - Whether judge unduly influenced by Victim Impact Statements and high regard in which victim held - Whether judge overstated objective gravity of offence - Leave to appeal refused.

1 On 2 October 2017, the applicant pleaded guilty, in the Trial Division, to a charge of manslaughter. The charge arose out of events that occurred on 6 May 2017, resulting in the death of a young man, Jaiden Walker.

2 On 19 October 2017, the applicant was sentenced as follows:

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

11 years' imprisonment with a non-parole period of 8 years

3 The applicant now seeks leave to appeal against sentence pursuant to s 278 of the Criminal Procedure Act 2009. He relies upon a single ground of appeal:

The sentence of 8 years with a non-parole period of 5 years is manifestly excessive.

4 In his Written Case the applicant provided particulars of this proposed ground of appeal. He claimed that the sentencing judge had:

1. Placed too little weight on the plea of guilty in sentencing of the applicant;
2. Placed excessive weight on the campaign for more severe sentences for the offence of manslaughter involving alcohol and drug consumption and the need for general deterrence;

1. Placed excessive weight on the applicant's occasional use of drugs in the period during which he was employed and his life had stabilised. In the circumstances where the applicant had not had criminal charges since 2010 and had generally demonstrated a significant change in his life;

1. Placed excessive weight on the nature of the offence being a circumstance where one punch has been delivered in the context of consumption of alcohol and drugs and the need for general deterrence;
2. His Honour gave inadequate weight to the obvious fact that this offence fell into the less serious category as an example of the offence of Manslaughter; and
3. Placed insufficient weight on the need to moderate the sentence when considering the applicant's personal circumstances and the impact upon him of his removal from his young family.

5 On the afternoon of Saturday, 6 May 2017, the applicant attended a football match between Collingwood and Carlton at the Melbourne Cricket Ground. He met a man named Jack Parnell, for the first time, while they were seated next to each other.

6 The applicant and Mr Parnell continued to socialise throughout the afternoon. The applicant consumed a considerable quantity of alcohol, about five beers, during the course of the match.

7 Later that evening, they both attended a bar known as Cherry Bar, near Flinders Lane in Melbourne. The applicant consumed further alcohol at Cherry Bar, although there was no clear indication of exactly how much he drank at that venue.

8 The deceased, Jaiden Walker, had spent the day celebrating the baby shower of his friend Cassandra Ferguson, and her partner Jed Bolte. At about 4.00 pm, Mr Walker and Mr Bolte attended Crown Casino. They were later joined by Ms Ferguson and two other friends, Brooke Ridley and Belinda Griffiths. Mr Walker had previously been in a relationship with Ms Ridley. At around 10.15 pm, after having visited a number of other bars in the city, the group went on to Cherry Bar.

9 At Cherry Bar, Ms Griffiths struck up a conversation with the applicant and Mr Parnell. She introduced them to the other members of her group. The applicant mentioned to Mr Bolte and Ms Ridley that he had, in his possession, a quantity of cocaine. He offered to share it with them. The three of them went into a cubicle in the men's toilet and together they consumed the drug. Mr Bolte soon left the cubicle.

10 At about 11.00 pm, a security guard at Cherry Bar discovered the applicant and Ms Ridley 'making out' in the cubicle. He asked them to leave the bar at once, which they did.

11 After they had left the premises, Ms Ridley telephoned Ms Ferguson. She explained that she and the applicant had effectively been ejected from the bar and were waiting outside. A short time later, the remaining members of the group, as well as Mr Walker and Mr Parnell, left the venue. They all then turned left into Flinders Lane, and then right into Russell Street.

12 At that stage, the applicant steered Ms Ridley into the alcove of the entrance to a shop. There, they consensually embraced and kissed for about two minutes. This was recorded on a CCTV camera from inside the store. The rest of Ms Ridley's group, and Mr Parnell, waited for them on the footpath.

13 Ms Ridley then appeared to break away from the applicant, and left the alcove. Her group decided to move on, seemingly intending to leave the applicant and Mr Parnell behind.

14 It had become apparent, by that stage, that Mr Walker was unimpressed by the applicant's conduct towards Ms Ridley, who, it will be recalled, had previously been in a relationship with Mr Walker.

15 The applicant, somewhat affected by alcohol and drugs, offered to shake the hands of several members of the group. He proffered his hand to Mr Walker, who rejected the gesture, and shook hands with Mr Parnell instead. This apparent slight obviously angered the applicant, who then moved towards Mr Walker, insisting that he shake hands with him. He was heard to say to Mr Walker, 'shake my hand cunt' and 'shake my hand, I'm not a dog'.

16 Mr Walker eventually shook the applicant's hand, but did so in a manner that was described by Ms Ferguson as 'a bit aggressively'.[1] The applicant and Mr Walker then began 'chesting up' to each other. Ms Ferguson outlined what then occurred:

The two then started getting in each other's face swearing at each other 'fuck you, fuck off'. [The applicant] said 'Grab my hand like that and I'll hit you'. [Mr Walker] said 'I'll do whatever I want mate'.

17 Mr Parnell then pulled the applicant back, restraining him from behind. Ms Ridley stood between the applicant and Mr Walker. She told the applicant to 'fuck off'. A scuffle ensued. The applicant quickly reached around Ms Ridley and, according to the various witnesses who were present, punched Mr Walker once to his left cheek. Mr Walker immediately fell to the ground. Sadly, his head struck the road. He was unconscious from that moment on.

18 The applicant ran away from the scene, while Mr Walker lay on the ground. Shortly thereafter, police intercepted him elsewhere in the city. When first questioned by them, he denied having been involved in any fight. Soon after, however, when formally interviewed, he admitted to what he had done.

19 Mr Walker died in hospital some six days later, without ever having regained consciousness. A post-mortem revealed a bruise to his left cheek. In the course of oral argument before me, Mr Richter QC submitted that this bruise might have been an old one, pre-dating the events of the night in question. Alternatively, it might have been a result of intubation in hospital, rather than the product of the punch delivered by the applicant to Mr Walker's face.

20 In any event, it was clear that Mr Walker's death was the result of a fractured skull, and a brain injury. There was no dispute about the fact that he had died as a result of the impact of his head hitting the ground when he fell, after being punched by the applicant.

21 The sentencing judge, in his comprehensive reasons for sentence, said that he was satisfied that Mr Walker's failure to use his hands to soften his fall had been brought about by his own state of inebriation. His blood alcohol concentration was measured at 0.19 per cent. His Honour stated that the evidence did not permit him to be satisfied, beyond reasonable doubt, that Mr Walker's failure to take protective action was the result of his having lost consciousness by virtue of the impact of the punch itself. Accordingly, he did not find that the punch alone had rendered Mr Walker unconscious.

22 The sentencing judge concluded that it had been the applicant, and not Mr Walker, who had initiated the altercation that took place between them. The physical confrontation between the two men had arisen because of the applicant's aggressive conduct and strong language towards Mr Walker when he initially refused to shake the applicant's hand. When Mr Walker did so moments later, it was in an aggressive manner, squeezing the applicant's hand. Nonetheless, in his Honour's view, the applicant had responded in an unreasonable and disproportionate manner.

23 His Honour regarded the offending as having been aggravated, to some degree, by the applicant's having left the scene immediately after having punched Mr Walker to the head.

24 The judge noted that the applicant was aged 26 at the time of the offending. He accepted the submission, put on his behalf on the plea, that he had 'grown up hard and ... in very difficult circumstances'.[2] His older brother had been a drug user, who had left the family home in his early teens. The brothers did not thereafter have any sort of relationship.

25 Moreover, the applicant had experienced difficulties at school. He had ultimately been expelled in Year 9. He had moved out of the family home, when aged only 14, following difficulties with his step-father. A good deal of the material submitted on the plea suggested that his step-father had been violent and extremely abusive towards the applicant's mother and the applicant himself.

26 The applicant had engaged in substance abuse from the age of 14 to about the age of 22. He had used alcohol, amphetamines, cocaine and ecstasy. From the age of 17 to the age of 22, he had regularly used methamphetamine (ice).

27 His Honour noted that the applicant had a not-insignificant criminal record. He had appeared twice before the Geelong Children's Court, when he was aged between 16 and 18. On those occasions, he had been convicted of a number of offences, several of them quite serious and involving violence.

28 In 2010, after he turned 18, he had been dealt with in the Geelong Magistrate's Court for a series of offences involving violence. These included unlawful assault, recklessly causing injury and behaving in a riotous manner in a public place. There had been no further convictions since that time.

29 The judge gave careful consideration to the fact that after the applicant met his current partner, his life appeared to have stabilised. The births of his three children (aged, at the time of sentencing, five, three and one) had prompted further change. By all accounts, he had been a loving and devoted father.

30 The judge noted that the applicant's progress in his adult life was supported by his having worked hard to provide for his young family. He had advanced from having been a mere labourer to a Leading Hand with one of Australia's largest civil infrastructure companies. He had acquired a number of skills, and attained several qualifications along the way.

31 His Honour considered a number of references submitted in support of the applicant's character. In summary, he accepted that the applicant had 'develop[ed] from a troubled youth to a hardworking father with a strong sense of family'.[3] For that reason, he ultimately put 'almost no weight' on the applicant's troubled history as a teenager.

32 His Honour did note, however, that despite the applicant's impressive achievement in having stayed out of trouble since 2010, he had continued, all along, to use illicit drugs. That included the period immediately leading up to the offending. The applicant acknowledged that he had a difficulty with alcohol, consuming beer each night in a 'problematic' quantity. He had, of course, both used cocaine himself and supplied it to Ms Ridley and Mr Bolte, shortly before the commission of this offence.

33 The sentencing judge concluded that the applicant had demonstrated a good deal of remorse for his offending. This was shown as early as his first interview with police. In addition, he had pleaded guilty at the earliest practicable opportunity, and reiterated that remorse in a letter which he sent to Mr Walker's family.

34 His Honour accepted that the applicant had not set out on the night in question to have a confrontation with anyone. His decision to attack Mr Walker had been made in anger, and on the spur of the moment.

35 The sentencing judge assessed the applicant's prospects of rehabilitation as being 'very good'.

36 His Honour gave consideration to current sentencing practices for manslaughter, and particularly, unlawful and dangerous act manslaughter. He noted that the range of sentences imposed for this offence appeared to have increased significantly in recent years. He also noted that alcohol and drug fuelled violence in public places had become a matter of great concern to the community, such conduct being all too prevalent.

37 The judge observed that Mr Walker had been aged only 22 at the time of his death. He had been working as a labourer and trying to save money in order to travel, and eventually establish his own business. According to his Honour, he was 'a fine young man' who had been 'deprived of the rest of his adult life'.[4]

38 His Honour had regard to the Victim Impact Statements made by Mr Walker's family and friends. They spoke of the devastating effect that his death had had upon their lives. The judge recognised that there were some powerful mitigating circumstances that the applicant could call in aid, but added:

I cannot permit them to divert me from performing my duty, which is to impose a sentence that adequately vindicates the dignity of Jaiden's life and reflects the importance that the law recognises in upholding the value of human life and punishing those who take it.[5]

39 In his oral submissions, Mr Richter drew attention to that passage in his Honour's sentencing remarks, with particular emphasis upon the phrase 'the dignity of Jaiden's life'.

40 As indicated, the applicant relies upon a single ground, that of manifest excess. It need hardly be said that such a ground requires an applicant to demonstrate that the sentence imposed was wholly outside the range of sentences reasonably available to the sentencing judge. It is not sufficient to show merely that the sentence was severe, or that it might have been open to the judge to fix a lesser sentence than that which was imposed.

41 In his written submissions, Mr Richter argued that the applicant's early plea of guilty was especially significant in the context of a s 9C notice[6] having been issued, and potentially being operative at the time the plea was entered. Subsequently, that notice was withdrawn, but that did not detract from the importance of the early plea.

42 Mr Richter drew attention to the applicant's profound and genuine remorse, which he submitted had been exceptional. It was submitted that this remorse had been demonstrated through the applicant's various records of interview, and in his actions in having telephoned the hospital, and police, every day between the incident and Mr Walker's death a week or so later. In addition, the applicant had written a letter to Mr Walker's family, in which he displayed an acute awareness of the appalling and irreversible consequences of what he had done.

43 It was submitted on the applicant's behalf, that the sentencing judge must have given excessive weight to the Victim Impact Statements. It was further submitted that the value of a lost life is not to be measured by the degree to which that life is mourned by others. Moreover, it was said that it would amount to material error of a kind that would vitiate the exercise of the sentencing discretion, to impose a heavier sentence than might otherwise be appropriate merely because the deceased happened to be well loved, rather than without family, or other support.

44 In support of his submission that his Honour had erred in this very specific way, Mr Richter pointed to the comment by his Honour set out at [38] above, regarding 'a sentence that adequately vindicates the dignity of Jaiden's life'.

45 Mr Richter observed, in the course of oral argument:

It's not a question of upholding the dignity of Jaiden's life and the dignity of Jaiden's life is what all the Victim Impact Statements went to ... It's a matter of punishing for the taking of a human life, whether that life was dignified or not and that's why we say the repetition of the notion of the dignity of his life, which can only be referrable to the Victim Impact Statements, provides a subconscious sort of content for the fact that eight years is given as the penalty.[7]

46 With respect to the objective gravity of the offence itself, Mr Richter submitted that the punch to Mr Walker's face was clearly not inflicted with sufficient force to have brought about the death of a person who was not heavily intoxicated. Such a person could, presumably, have taken some protective action to soften his fall.[8]

47 Mr Richter further submitted that the sentencing judge appeared to have been unduly influenced by concerns, within the community, about so called 'one punch' or 'coward's punch' fatalities. He submitted that this particular case did not have the hallmarks of fatalities of that particular kind.

48 This conflation of such cases was said to have led his Honour to overstate the objective gravity of this particular offence. It was submitted that the statutory presumption of dangerousness for this particular class of unlawful act, whereby a single punch or strike to the head is deemed to be 'dangerous' for the purpose of unlawful and dangerous act manslaughter, [9] did not obviate the need to characterise the objective gravity of the particular offence in a proper manner.

49 Mr Richter next submitted that, in the absence of a s 9C notice, the sentence to be imposed in this case could not be in any way influenced by the legislative provision which required the imposition of a mandatory minimum term of 10 years' imprisonment. Instead, it was submitted, sentencing for this form of manslaughter had to involve the considerations applicable prior to the enactment of s 9C. The judge should simply have put that section to one side. It was submitted, however, that his Honour subconsciously may have allowed it to play a role in his synthesis of the appropriate sentence.

50 Ms Piekusis, on behalf of the Crown, submitted, in response, that the sentence imposed on the applicant was by no means excessive. It could not be said to be wholly outside the range available to the judge in the particular circumstances of this case.[10]

51 With respect to factors that aggravated the offending, she drew attention to the following matters;

(a) the applicant was affected by both alcohol and drugs;

(c) immediately prior to the commission of the offence, Mr Walker and his friends had sought to separate themselves from the applicant;

(d) it was the applicant who instigated the tension, and confrontation, between himself and Mr Walker;

(e) the applicant threatened to hit Mr Walker if he again grabbed his hand forcefully;

(f) the applicant's behaviour was clearly of concern to his friend Mr Parnell, who briefly managed to restrain him;

(g) the applicant's behaviour caused Ms Ridley to stand between Mr Walker and himself in an attempt to calm him down, and to protect Mr Walker;

(h) the applicant offered no assistance to Mr Walker after he punched him to the head and knocked him to the ground. Instead he fled the scene; and

(i) the offence occurred on a busy public street, late at night.

52 Ms Piekusis submitted that his Honour gave appropriate weight to the 'justifiable community concern' regarding violent offences that now seem to occur, all too frequently, on public streets. She relied, in that regard, on the following statement by the High Court in R v Kilic;[11]

... sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending. [12]

53 Ms Piekusis submitted that, contrary to the applicant's contention, his Honour had not been unduly influenced, still less overborn, by the Victim Impact Statements. His treatment of those statements had been entirely orthodox, and in accordance with the requirements of s 5(2)(daa) of the Sentencing Act 1991. His reference to the 'dignity of Jaiden's life' should be understood, in context, as meaning nothing more than the dignity of any human life.

54 Finally, she submitted that the sentence imposed gave appropriate weight to principles of denunciation, general and specific deterrence, and rehabilitation.

55 In R v Clapper and Teap,[13] Nettle J (as his Honour then was), had this to say:

The maximum sentence for the offence of manslaughter is 20 years' imprisonment. Of all crimes, however, manslaughter throws up the greatest variety of circumstances affecting culpability, and because manslaughter covers such a wide range of circumstances ... the range of penalty is very wide indeed. 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 which can be applied to such cases.[14]

56 Perhaps, in the past, a sentence of eight years' imprisonment, with a non-parole period of five years, might have been considered stern for an unlawful and dangerous act manslaughter, involving a punch to the head, leading to a fall, and resulting in death.

57 Even so, as far back as 1991 (when, it should be noted, that the maximum penalty for manslaughter was 15 years' imprisonment, and not 20 years as it is now), sentences of five and half years' and four and a half years' imprisonment were increased, on appeal by the Crown, to nine years' and eight years' imprisonment respectively.[15]

58 As the sentencing judge correctly noted, sentences for all forms of manslaughter have increased significantly in recent years.[16] In the past few years, the sentencing statistics, produced by the Sentencing Advisory Council, show that there have been a number of sentences for manslaughter which have exceeded 10 years' imprisonment. Those statistics indicate that there is nothing at all unusual about a head sentence of eight years for manslaughter, still less a non-parole period of five years. Indeed, the most recently available sentencing snapshot for manslaughter[17] indicates that, the average sentence for this offence is currently between about seven years and nine years' imprisonment.

59 Mr Richter sought to argue that the applicant's offending should be viewed as special, and almost in a category of its own. With respect, I do not accept that submission. Nor do I accept his somewhat ambitious submission that the appropriate sentence in this case should have been in the order of three to four years' imprisonment, at most. Such a sentence would, in my view, have been manifestly inadequate.

60 I do not accept that it is reasonably arguable that the sentencing judge allowed himself to be overborn by the Victim Impact Statements in this case. Rather, I accept the Crown's submission that his Honour made legitimate use of those statements for the purpose of determining sentence, in accordance with s 8K of the Sentencing Act 1991.[18]

61 In my view, the reference to 'the dignity of Jaiden's life', upon which Mr Richter focused heavily in his submissions, was not was intended to signify that the applicant was in any way deserving of greater punishment for what he did than had Mr Walker not been held in such affection and esteem. When read in context, his Honour was saying only that the death of a young man, in circumstances such as these, was a tragedy, as it plainly was. The fact that the judge may have expressed that sentiment somewhat infelicitously does not mean that he fell into the error for which the applicant now contends.

62 I also reject Mr Richter's submission that this particular offence should be regarded as being at the lower (if not the lowest) end of the scale of objective gravity.

63 I regard as lacking any proper foundation Mr Richter's submission that the blow to Mr Walker's cheek was unlikely to have been delivered with any great force. This was a punch to the face, and not a mere slap or push. The blow was delivered with sufficient force to cause Mr Walker to fall immediately to the ground. It is true that by reason of his state of inebriation, he may not have had the capacity to soften his fall by taking protective action with his hands. Nonetheless, there was a clear causal link between the blow and the fall, as the applicant's plea of guilty properly acknowledged.

64 Mr Richter's alternative submission, developed in oral argument, that this was not a case whereby the punch to the head caused 'acceleration of the fall' (as a result of the force used in inflicting the blow) seems to me conjectural, and of marginal significance. The fact is that the blow to the face caused the fall which, in turn, resulted in death. The precise mechanics of that process are of little real materiality. It was well open to conclude that this punch to the head was itself an unlawful and dangerous act. The evidence suggests that it would have been so regarded even without reference to the extended definition of the term 'dangerous' now contained in s 4A of the Crimes Act 1958.

65 I am not persuaded by Mr Richter's argument that the bruise to Mr Walker's left cheek may not have been brought about by the blow struck to that area of his face, and might even have been the result of intubation in hospital. Common sense suggests that this hypothesis borders upon the fanciful.

66 In my view, both the sentence of eight years' imprisonment, and the non-parole period of five years, were within range. As his Honour correctly observed, acts of alcohol and drug fuelled violence, particularly through the infliction of punches to the head, have become all too prevalent. Such conduct, particularly when it results in death or serious injury, calls for strong denunciation. It warrants stern punishment.

67 I am satisfied that there is no reasonable prospect that if leave to appeal were granted, this Court would hold that this sentence was manifestly excessive. I am also satisfied that there is no reasonable prospect that this Court would uphold any of the complaints made, alleging specific error, if leave to appeal were granted.

68 Accordingly, and pursuant to s 280(1) of the Criminal Procedure Act 2009, leave to appeal must be refused.

[1] Ms Ferguson said in her second statement to police that it was the applicant, and not Mr Walker, who had been responsible for the aggressive handshake. The sentencing judge found, on the balance of probabilities, that it was Mr Walker who had been the person who displayed aggression in the handshake.

[2] R v Vincec [2017] VSC 602, 54-55 [19] ('Reasons').

[6] Section 9C of the Sentencing Act 1991 provides that a custodial sentence with a non-parole period of not less than 10 years must be imposed for manslaughter by single punch or strike, where the prosecution has filed a notice under that section.

[7] Transcript of Proceedings (1 February 2017) 5.8-17.

[8] Of course, that submission had to be balanced against the principle that one takes one's victim as one finds them.

[9] See s 4A of the Crimes Act 1958, inserted by s 3 of the Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014.

[10] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361.

[11] [2016] HCA 48; (2016) 259 CLR 256.

[13] [2003] VSC 462.

[15] See R v Papazisis & Bird (1991) 51 A Crim R 242, involving drunken violence perpetrated upon a stranger who was set upon, and kicked to death. Admittedly, it was a significantly worse case, in that regard, than the present. That had to be balanced against the lower maximum that then prevailed.

[16] See, eg, Sherna v The Queen [2011] VSCA 242; (2011) 32 VR 668 (appeal against sentence of 14 years' imprisonment with a non-parole period of 10 years dismissed); R v Grimmett [2011] VSC 506 (offender sentenced to 11 years' imprisonment with a non-parole period of 8 years); Mocenigo v The Queen [2013] VSCA 231 (sentence of 11 years' imprisonment with a non-parole period of 8 years imposed by this Court after successful appeal against conviction for murder) Kellis v The Queen [2013] VSCA 7 (appeal against sentence of 8 years' imprisonment with a non-parole period of 5 years dismissed); Tiba v The Queen [2013] VSCA 302 (application for leave to appeal against sentence of 10 years' imprisonment with a non-parole period of 6 years and 6 months refused); McEwan v The Queen; Robb v The Queen; Dambitis v The Queen [2013] VSCA 329; (2013) 41 VR 330 (application for leave to appeal against sentence of 8 years' imprisonment with a non-parole period of 5 years and 6 months refused); DDP v Bryan [2014] VSCA 54 (sentence of 8 years' imprisonment with a non-parole period of 4 years and 6 months' imposed following a successful Crown appeal); Papadopoulos v The Queen [2014] VSCA 63 (application for leave to appeal against sentence of 11 years and 6 months' imprisonment with a non-parole period of 9 years refused); DPP v Torun [2015] VSCA 15 (appeal against sentence of 8 years' imprisonment with a non-parole period of 5 years dismissed); Maybus v The Queen [2017] VSCA 125 (application for leave to appeal against individual sentence of 9 years' imprisonment refused); Philip v The Queen [2017] VSCA 320 (application for leave to appeal against sentence of 9 years' imprisonment with a non-parole period of 6 years refused).

[17] Sentencing Advisory Council, Sentencing Snapshot No 199: Manslaughter (April 2017) 3-4.

[18] Section 8K(1) of the Sentencing Act 1991 provides that, if a court finds a person guilty of an offence, a victim of the offence may make a statement to the court for the purpose of assisting the court in determining sentence.