Director of Public Prosecutions v Ackerley (No 2)
[2021] VSC 257
•14 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0162
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| MICHAEL ALLAN ACKERLEY | Accused |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 and 27 April 2021 |
DATE OF SENTENCE: | 14 May 2021 |
CASE MAY BE CITED AS: | DPP v Ackerley (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 257 |
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CRIMINAL LAW — Sentence — Manslaughter — Unlawful and dangerous act—Accused stabbed unarmed roommate during altercation — Accidental stabbing — Guilty plea —
Remorse — General deterrence and denunciation — COVID-19 – Relevance and effect of
pandemic on sentencing — Intellectual disability —R v Verdins (2007) 16 VR 269 —Sentence of six years and six months’ imprisonment with non-parole period of four years — Sentencing Act 1991 (Vic) ss 6AAA, 11 — DPP v Beattie [2020] VSC 229.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | G Hayward | Office of Public Prosecutions |
| For the Accused | J Williams with S Gillahan | Victoria Legal Aid |
HER HONOUR:
Michael Allan Ackerley, you were originally charged with the murder of Matthew Baum. On 15 January 2021 you pleaded guilty to the alternative crime of manslaughter by unlawful and dangerous act (‘manslaughter’). The maximum penalty for the offence of manslaughter at the relevant time is 20 years imprisonment.[1]
[1]Crimes Act 1958 (Vic), s 5 as amended by Crimes Amendment (Manslaughter and Related Offences) Act 2020 (Vic) s 3, which substituted the previous maximum sentence of 20 years imprisonment with the current maximum sentence of 25 years imprisonment.
It is now my role to impose a sentence on you for that crime.
The details of the events of 9 and 10 of February 2020 have been set out in some detail in my ruling of 20 April 2021. However, it is important that I summarise them briefly here. [2]
[2]DPP v Ackerley (No 1) [2021] VSC 189.
On the evening of Sunday, 9 February 2020 you were at home in Lara, Victoria, where you lived with Mr Baum and two other men, Bradley Humphrey and Joshua Kostecki. You drank alcohol with Mr Baum and Mr Humphrey before they went together to the shed which served as Mr Humphrey’s bedroom, where they continued drinking.
At some stage before midnight, Mr Baum left the shed and returned to the house. The two of you argued about Mr Baum’s phone, which he accused you of stealing. He physically assaulted you, leaving you with a number of injuries to your head. He left the house and went back to the shed while you remained at the house.
You called Mr Kostecki, your other housemate, and told him Mr Baum had ‘bashed’ you, and sent him a photo of your facial injuries.
You were standing alone in the kitchen when Mr Humphrey returned to the house. You said words to the effect of, ‘Look what he done to me …You better get him out of here before I kill him’.
At some stage between 11:45pm and 12:07am you armed yourself with a 47cm long knife that had no handle. You were holding it in your hand when Mr Baum came back into the house, moving around the kitchen bench into the kitchen in front of you. Mr Baum was unarmed. There was a physical altercation between you, with pushing and slapping, which lasted only 5 to 10 seconds. During the scuffle you were holding the knife rigidly pointed in Mr Baum’s direction when the knife pierced Mr Baum’s groin. For the reasons set out in my previous ruling dated 20 April 2021, I have found that you did not do this deliberately.
Mr Baum was bleeding heavily and walked out to the carport outside, where he collapsed on the ground, unresponsive.
You called 000 at 12:07am and asked for an ambulance. You tried to mop up the blood in the kitchen and the carport. You called 000 again at 12:22am and attempted to provide first aid to Mr Baum.
You told the 000 operator, and later Mr Kostecki and the police, that Mr Baum had bashed you and that you had stabbed him to get him off you. During those conversations you were audibly distressed.
The police and paramedics attempted to revive Mr Baum but he died at the scene.
When talking to a police officer you said that you were sorry for what you had done.
Before I consider your personal circumstances, I want to say something about the effect your actions have had on others.
Mr Baum’s death has been nothing less than devastating upon his family. Mr Baum was 41 years old when you killed him. Victim impact statements were provided to the Court by his mother Dianne Martin, his father Neville Baum, his stepmother Glenda Baum, his stepfather Clifford Bamford, and his sister Sarah Hoopert.
Diane Martin and Sarah Hoopert read their statements in Court. I have had careful regard to all of the statements.
Each of these statements describe the emotion and loss that is involved in a death like this, where the death is futile and unnecessary. Mr Baum’s family is suffering greatly from his death. They have been profoundly affected by your actions. They have lost a loving son and brother. They speak as one of feelings of grief, sadness and a loss of enjoyment in life. There is nothing I can say or do to bring Mr Baum back or heal the pain his family feels.
You are 50 years old, and were 49 years old when you killed Mr Baum. You grew up in Hamilton, Victoria. You are the eldest of four children to your mother Maureen, and your father Gordon. You are close with your parents and your sister, Kim and her two daughters. Kim gave evidence before me on 16 April 2021.
It is not contested that you have a mild intellectual disability that has had a significant impact on your life. Although there is no record before me of any formal diagnosis, until your incarceration you were receiving the Disability Support Pension and support through the National Disability Insurance Scheme. Psychologist Patrick Newton consulted with you over videolink on 31 March 2021. I have read Mr Newton’s reports dated 6 and 7 April 2021. It was his view that you have a mild intellectual disability, and that it impacts on your ability to think about complex things and ideas, understand abstract concepts, and adapt to new circumstances.
You completed primary schooling in Hamilton but left Technical School after only one year. You cannot read or write more than your own name and simple words. You have worked on and off since leaving school, including building furniture in a sheltered workshop, collecting scrap metal in wrecking yards, and doing odd jobs on farms. You have a strong interest and talent for mechanics. Throughout your life you have moved house a number of times, often living with friends or family, and have experienced periods of homelessness.
Your sister told the Court that you have always been a ‘solitary’ person. You prefer to spend time on your own, and find it hard to participate in social activities. You find it difficult to cope when things go wrong, and have frequently been taken advantage of by people you trusted and considered to be your friends. One especially traumatic instance of this breach of trust occurred in your childhood when a family friend sexually assaulted you.
You had a long term relationship with your girlfriend Chrystal for approximately two years, which ended when you were remanded in custody.
Since your teenage years you have been a heavy drinker, and drinking has been the main way in which you connect with other people socially. Since your twenties, you have regularly used cannabis to get to sleep. You are currently waiting to have surgery to remove an umbilical hernia which is causing you pain and discomfort.
I now turn to the gravity of the offending. You pleaded guilty to manslaughter. In your favour, and significantly, the conclusion based on the evidence is that the fatal stabbing was not deliberate and was unintentional. You did not instigate the first altercation between you and Mr Baum during which Mr Baum assaulted you. The evidence is that he ‘bashed’ you and put your head into the ground in the kitchen.[3]
[3]Transcript of Proceedings, DPP v Ackerley (Supreme Court of Victoria, S ECR 2020 0162, Kaye J, 23 September 2020) T15.12-13 (Bradley Humphrey).
You sustained significant injuries as a result of Mr Baum’s assault on you. Dr Ghumman examined you the following day and reported a number of injuries, including a wound and bruising to your forehead, a bruise under your right eye and to your right cheek, and a number of scratches.
You did not instigate the second altercation between you and Mr Baum, which led to the fatal stabbing. Your offending was not premeditated and it was not a sustained attack, the cause of death being a single stab wound. Mr Baum was bigger than you and he had a blood alcohol level of 0.17% at the time of the stabbing.
You made no attempt to conceal your actions. After the fatal injury you called 000 and made attempts to assist Mr Baum.
It was submitted by the prosecution that you were not entirely honest when you told the 000 operator and the police what happened. They say that you exaggerated Mr Baum’s actions and you misrepresented how the fatal stabbing occurred. For the reasons I set out in my earlier ruling I do not consider that you were attempting to exaggerate Mr Baum’s actions or misrepresented how the fatal stabbing occurred.[4] I accept each of these features of the offending and take them into account.
[4]DPP v Ackerley (No 1) [2021] VSC 189 [61]-[63].
Having said that, you chose to arm yourself with a large, dangerous knife. While I accept that Mr Baum had been verbally and physically aggressive towards you, I also consider that your conduct was highly dangerous in the circumstances, and unlawful.
You conceded in your plea that what you did was not a reasonable response to the circumstances. You put Mr Baum at risk of harm by arming yourself with such a dangerous weapon and holding it in his direction. It was your choice which resulted in Mr Baum coming to harm. The loss of Mr Baum’s life that followed was, as I said, both tragic and futile.
There are a number of factors which I consider reduce your moral culpability for your offending. As I have said, you did not intend to stab Mr Baum. The prosecution conceded it was an act of excessive self-defence. You made an unintelligent decision to arm yourself with a knife and you knew it was wrong in the circumstances where you were no doubt afraid. The prosecution submitted that while you were afraid, you were also ‘fiery’. I consider it was highly likely you were both afraid and fiery, given Mr Baum’s assault on you. I accept that your fear in the circumstances provides a factor of mitigation. From the evidence before me there is nothing to suggest that your conduct was principally motivated by anger or revenge.
You have a mild intellectual disability which is accompanied by significant deficits in your adaptive functioning.[5] Your intellectual disability is an important matter to take into account in assessing your moral culpability. The Court of Appeal identified, in the case of R v Verdins[6] (‘Verdins’), that there are at least six ways in which an offender’s mental or intellectual impairment can impact on other considerations relevant to sentencing.
[5]See Patrick Newman, ‘Confidential Psychological Assessment of Mr Michael Allen Ackerley (D.O.B 19 October 1970)’ dated 6 April 2021, [40], tendered as part of Exhibit D1.
[6](2007) 16 VR 269.
Your counsel contended that the first, third, fourth and fifth of the Verdins’ principles have some limited application in your case.
The first Verdins’ principle deals with whether your intellectual disability is relevant to your moral culpability, that is, how blameworthy you are for your behaviour. Your counsel submitted that your decision-making on 9 and 10 February 2020 was relevantly affected by your disability. The prosecution accepted that your intellectual disability was generally something to which I should have regard, but not necessarily as one that was relevantly connected to your offending under Verdins.
Mr Newton, the psychologist, states, and I accept, that you do have a clear understanding of right and wrong. However, I also accept that your ability to engage in moral reasoning is impaired by your intellectual disability. Whether it is considered under the banner of Verdins or as a factor relevant to your moral culpability,[7] I am nevertheless satisfied that your intellectual disability meant that you were and are able to engage in only superficial moral reasoning. Your fateful decision to arm yourself with the knife should be seen in that context.
[7]See Muldrock v R (2011) 244 CLR 120, 139 [54].
The third limb of Verdins considers whether your intellectual disability moderates the need for general deterrence in formulating sentence. The question for me is, when sentencing you, how much emphasis, if any, should I put on deterring other members of the community from acting in the same or a similar way.
By your plea you have accepted that you killed Mr Baum and that you had no lawful reason for doing so. As I have said, you must be punished for that act. I must give substantial weight to the need to send a message in the community that manslaughter is not tolerated. There can be no doubt that anyone who uses a knife and kills someone will face a harsh penalty. Having said that, I consider there would be injustice associated with using you as a vehicle for general deterrence given your intellectual disability. I have moderated this factor as a consequence. That is, I consider it would be unfair and inappropriate to use you as an example to others in the community. The community expects that a person with an intellectual disability such as yours would be treated differently by the justice system to a person who was not so affected.
The fourth limb of Verdins relates to the impact of your intellectual disability on specific deterrence. I have to decide, when sentencing you, how much emphasis, if any, I should put on the need to prevent and deter you from engaging in this kind of violence again.
The Court in Verdins confirmed that specific deterrence may be moderated or eliminated as a sentencing consideration when the offender has an intellectual or mental impairment. In this case, I consider that specific deterrence has a limited role to play in the formulation of an appropriate sentence for you, taking into account the link between your intellectual disability and the offending, and the fact that specific deterrence will not operate as effectively given your disability and your lessened capacity to exercise appropriate moral judgment.
Finally, the fifth and sixth principles set out by the Court in Verdins relate to the offenders’ experience of imprisonment and consequences of imprisonment on offenders’ mental condition. Your intellectual disability, and, in addition, the presence of an umbilical hernia will undoubtedly make being in prison more onerous on you. This was not disputed.
In the circumstances, I will allow some moderation to the degree of your moral culpability as well as the weight to be given to general and specific deterrence, and accept your disability will increase the onerousness of your time in prison.
In addition, even though the COVID-19 infection rate in Victoria as at the date of sentence has considerably improved, the conditions in prison as a result of COVID-19 pandemic are relevant and should be taken into account in sentencing you,
You have been in custody since you were arrested on 10 February 2020. Since that time, the COVID-19 pandemic has substantially impacted and increased risks to public health, and has resulted in unprecedented restrictions on individual freedom of movement. There was no specific evidence before me about your conditions in custody during or since the lockdowns. However, your counsel referred me to the case of DPP v Beattie which considered the impact of COVID-19 on that prisoner as at 1 May 2020.[8]
[8][2020] VSC 229; see also Brown v The Queen [2020] VSCA 60.
I take judicial notice of the fact that the pandemic caused additional stress and concern for prisoners and their families, given the uncertainty of when lockdowns would end and services and visits would resume, virtually or in person. I also note the restrictions’ impact on prisoners’ access to services and time outside their cells. I am satisfied that COVID-19 had the effect of making the time you served more onerous than it would otherwise have been. You have lived through a period of severe restrictions, isolation and anxiety as a result. While there have been significant improvements, there are still restrictions in place and less opportunities for social interaction, work and meaningful engagement while you are in prison.
I want to now turn to remorse. I accept that you did show remorse at a very early stage. You called 000 and tried to help Mr Baum by applying pressure on the wound using a hand towel when police arrived.[9] You also expressed some remorse to the police at the scene and you were cooperative with the police and told them the location of the knife.
[9]Statement of Sergeant Mark Gray, 11 February 2020, 2.
Your actions are consistent with the fact that you did not want to kill Mr Baum and wanted to help him.
It was submitted, based on Mr Newton’s assessment, that you are in effect only capable of ‘shallow remorse’, in that you only have an unsophisticated connection to your emotions, and your insight into the world of others is quite limited. Mr Newton went on to say these factors result in some limitation to your capacity to develop empathy for others. It was his view that you lack the cognitive sophistication necessary to infer the type of emotions likely to be experienced by others in given circumstances and this impacts on your ability to feel remorse for your conduct.
While I accept Mr Newton’s opinion, I consider your actions at the time demonstrated a concern for Mr Baum, and that you tried to do all that you could within your capacity to help him. This is consistent with remorse. You were not callous towards Mr Baum, which again demonstrated some empathy and remorse for him. Your actions speak clearly of your feelings of remorse despite the confused and clearly wrong decision to arm yourself with the knife, and the confused and misleading account of the stabbing that you gave to the ambulance workers and the police shortly after the offending.
You pleaded guilty at an early opportunity. Your plea has considerable utilitarian value and I agree with the submission this is particularly valuable amid the current delays to jury trials as a result of the COVID-19 pandemic.
Another important sentencing objective that I must take into account is the protection of the community. You have a criminal history which I consider is of limited relevance. Your only offending since 2003 has been failing to comply with your reporting obligations, for which you have been fined.
It is not disputed that you have reasonable prospects of rehabilitation. The prosecution submitted that the five community based orders and one suspended sentence which you served for other offences did not deter you from killing Mr Baum. I was invited to consider this fact as affecting your prospects of rehabilitation now.
I accept that your disability may make it harder for you to make good decisions, both in the past and in the future. I note again that you did not intend to kill Mr Baum. However, you made a tragically poor decision in arming yourself with a dangerous weapon, which resulted in his death. Some of the features of your intellectual disability do make it more likely that, under pressure, you might feel stressed and make poor choices. This does limit your prospects for rehabilitation somewhat. However, you will hopefully have the support of the National Disability Insurance Scheme when you are released to help you navigate life after prison, although I note that there is a level of uncertainty about what assistance will be available to you. Your sister gave evidence that you have spent time living with her and her family, helping with household chores, and that she has stayed in touch with you since you have been in prison. From her evidence it is clear that she cares deeply for you and has always ‘been a big supporter’ of yours.[10]
[10]Transcript of Proceedings, DPP v Ackerley (Supreme Court of Victoria, S ECR 2020 0162, Incerti J, 16 April 2021 T47.06-16, T48.03-09, and T49.22-27 (Kim Ackerley).
I consider the absence of violent offending in your criminal history suggests your prospects of rehabilitation are reasonable. In the circumstances, I do not consider that the protection of the community is a sentencing objective that I should give much weight.
I note for completeness that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose for which the sentence is imposed.[11] I have had regard to this principle in fixing your sentence.
[11]Sentencing Act 1991 s 5(3).
I accept that your offending was a less serious example of manslaughter.
I have had regard to a number of comparable cases which were handed up to me by counsel. It was accepted by both parties that the case of DPP v Beattie[12] is of considerable assistance.
[12][2020] VSC 229.
Given all the circumstances of this case I do regard this as a case in which your moral culpability is lessened by the circumstances in which the offending occurred, together with the other matters of mitigation that I have referred to.
Michael Ackerley, in all the circumstances, I consider the appropriate sentence for the offence of manslaughter that you committed is a period of imprisonment for 6 years and 6 months. That is the sentence that will be imposed on you. I fix a minimum term of 4 years, which is to be served by you before you are eligible to apply for release on parole.
Pre-sentence detention
I declare your pre-sentence detention is a period of 459 days, not including today’s date, and I direct that period be recorded as being time already served and entered in the records of the Court.
Disposal orders
I make a disposal order in the terms sought by the prosecution.
Section 6AAA declaration
I declare that had you not pleaded guilty to the charge of manslaughter, and I was
sentencing you after a trial on that charge, the sentence I would have imposed on you would have been 8 years imprisonment with a minimum period of 6 years to be served before you would be eligible to apply for release on parole.
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