Director of Public Prosecutions v Armstrong
[2023] VSC 374
•30 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0303
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYSON ARMSTRONG |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 & 27 June 2023 |
DATE OF JUDGMENT: | 30 June 2023 |
CASE MAY BE CITED AS: | DPP v Armstrong |
MEDIUM NEUTRAL CITATION: | [2023] VSC 374 |
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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Unprovoked attack upon innocent victim in public location – Accused intoxicated at time – Departure from scene after attack – Initial denials before later acknowledgment of guilt – Plea of guilty - Significant criminal history for violence – Troubled background of accused not of sufficient magnitude to enliven principles in Bugmy v The Queen (2013) 249 CLR 571 – No limb of R v Verdins (2007) 16 VR 269 enlivened – Serious example of offence – High moral culpability – Questionable prospects of rehabilitation – Current sentencing practices – Just punishment – Denunciation – General deterrence – Specific deterrence – Protection of the community – Sentence of 10 years’ imprisonment with a non-parole period of 8 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Johnston | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms C Marcs | Galbally Parker |
HIS HONOUR:
Introduction
Tyson Armstrong, you have pleaded guilty to the manslaughter of Luke Francis (‘Luke’), and have admitted prior convictions contained on a criminal record filed against you.
Your fatal attack upon Luke, encompassing one or more punches inflicted to his head and neck in the food court at Crown Casino, leading to the rupture of his left internal carotid artery and an ensuing catastrophic and fatal haemorrhage into his brain, can be accurately described as being overtly violent, unprovoked, cowardly, alcohol-fuelled and entirely senseless.
The devastating outcome of your criminal conduct over a matter of seconds demonstrates, once again, the fragility of human life.
By your mindless act of violence, you took the life of a much-loved young man with his whole life before him.
The maximum penalty for the crime of manslaughter is imprisonment for 25 years. Manslaughter is a category 2 offence under the Sentencing Act 1991 (‘the Act’), in respect of which, pursuant to s 5(2H) of the Act, a term of imprisonment must be imposed in the absence of substantial and compelling circumstances.
Your counsel Ms Marcs did not submit that any of the statutory exceptions within that provision apply in your case, and acknowledged that a term of imprisonment must be imposed.
Background to your crime
Luke was 29 years of age at the time of his death, living with his girlfriend Tessa Penberthy (‘Tessa’) in Mordialloc. He came from a close and loving family, was in full employment, and had a promising future.
On Saturday 26 March 2022, Luke finished work in the middle of the day. He then met with Tessa and some other friends in Parkdale before attending a music festival with the group at Birrarung Marr in Melbourne. The group remained at the festival for some hours, leaving at about 11.00pm. Luke and Tessa decided to walk to Crown Casino before going home. They entered the Casino through an eastern entrance at 11.48pm. Between that time and 12.14am on 27 March 2022, they made their way through the Casino, stopping to play a poker machine for a short while.
At 12.14am, Luke and Tessa were walking towards the exit to the food court area on the northern side of the Casino, Tessa being some metres behind Luke, when they had the great misfortune to encounter you as you, in the company of your cousin Joshua Armstrong, walked towards the same exit through a row of poker machines.
In the hours leading up to that chance encounter with Luke, you had been in Melbourne at a number of venues, having travelled by train from Geelong, intending to stay the night at the Great Southern Hotel (‘Great Southern’) in Spencer Street. You and four family members attended the Meatstock Barbecue festival at the Melbourne Showgrounds, then a bar at Southern Cross Railway Station before freshening up at the Great Southern preparatory to heading to the Casino. You remained at the Casino for a number of hours, socialising, dancing, and drinking. At all venues you attended that day, you consumed alcoholic beverages, to such an extent that by the time you encountered Luke, you were noticeably intoxicated.
As Luke passed the aisle along which you and your cousin were walking, he can be seen on CCTV footage to look in your direction. A very brief verbal exchange ensued. You later claimed that in the exchange, Luke asked you to go outside, apparently for a fight. Your cousin supported this aspect of your account. I find it difficult to accept that this was so. Even if Luke did ask you to go outside, I am satisfied that he had no intention of fighting you. It is the case that Luke can be seen in the footage gesturing with his hand towards the exit. But at no stage, either then or subsequently, did he engage in any behaviour that looked provocative or aggressive.
Luke then walked past security through the exit doors into the food court with you following closely behind, followed by Joshua and then Tessa. As the group approached the exit, Tessa heard you say words to the effect of ‘let’s go’ or ‘let’s go outside’ in a provocative way. As you and Luke walked through the exit, you tapped him on the shoulder and said something in his ear.
In your consultation with a forensic psychiatrist, Associate Professor Andrew Carroll (‘Dr Carroll’) on 10 May 2023, it seems that you claimed to be in fear of Luke as you followed him into the food court, being concerned that he may be armed with a knife in the satchel he was carrying. You claimed that your attack upon Luke was launched by you as a pre-emptive attack to circumvent the risk of a more serious ‘punch on’.
I reject those claims you made to Dr Carroll. I believe there is no truth to your assertion of being in fear of Luke. Were that the case, you would have had no reason at all to be continuing to follow him out of the venue. Furthermore, Luke did nothing towards you to engender any feeling of fear.
As for your claim of a pre-emptive strike to avoid further conflict, I reject that also. You had no reason to anticipate violence. I am satisfied that the only person with violence in his mind as you and Luke headed towards the food court was you.
The attack; 27 March 2022
As Luke walked into the food court area, with his back to you, you walked up quickly behind him. You grabbed him around the neck from behind with your left hand, and with your right hand, reached over his right shoulder and grabbed the front of his neck or chest area. He was facing away from you at the time, putting something in the satchel he was wearing across his chest. With both hands on and around Luke’s chest and neck, you pushed him forcibly towards the railing of a nearby barrier. Tessa ran towards you and Luke.
After you pushed Luke onto the railing, he turned to face you, and you drew back your right arm and punched him with a closed fist to the left side of his jaw or neck. Luke grappled with you, and Tessa and Joshua Armstrong sought to intervene.
You threw a second punch towards Luke, although it is unclear whether this punch connected.
As the group moved further away from the railing, grappling with each other, you struck Luke again, this time seemingly with a right open hand to the left lower jaw, following which you grabbed him around the throat with your right hand.
During the course of your attack upon Luke, you were heard by a witness to be swearing and carrying on.[1]
[1]Robert Winkel, Depositions page 116.
Tessa pushed you away from Luke and gestured for you to move away. Luke stumbled and collapsed behind her, sagging down onto the floor near the front of a food shop. As Luke lay on the ground, you walked menacingly back over towards him, and could be seen to say something while looking at Luke. A witness Brent Ohlin described you as appearing to be celebrating what had happened, ‘standing there like a hero’ and repeatedly stating, ‘You can’t handle me, am I too big for you?’ to Luke as he lay on the ground.[2]
[2]Brent Ohlin, page 90.
You were coaxed away from the scene by Joshua Armstrong and the two of you headed towards the northern exit. You and Joshua were observed to be laughing and joking about what had happened as you departed towards the river.[3]
[3]Florent Lacroix, page 97.
Only 13 seconds elapsed from the point of your first physical contact with Luke in the food court to the point at which he collapsed. At no point during the incident did Luke strike or attempt to strike you. All he did was endeavour to resist your attack upon him.
Aftermath
Having left the food court, you and Joshua Armstrong walked in a westerly direction along the promenade towards Spencer Street. While talking to Joshua, you referred to the incident with Luke, demonstrating the altercation by putting your right hand on Joshua’s neck and pretending to punch him to the under-side of his chin. In the vision of you recorded on the CCTV footage along the promenade, you can be seen to exhibit a seemingly happy and unconcerned demeanour.
At about 12.30am, you and Joshua were stopped by police as you walked to the north along Spencer Street towards your accommodation. You initially denied having been involved in a fight at the Casino. When confronted with the fact of Luke having been hurt in the altercation, you said:
Tried to offer me out the front…He literally fucking grabbed me by the shoulder and told me to come out the front, so if I’m going to get in trouble for that fuckhead, no worries…He offered me out the front, he just said, ‘Let’s go’…He says, come on, go out the front. I said, ‘What the fuck you talking about?’. He goes, ‘Let’s go you fucking hero’. I said I don’t need to go anywhere…Honestly, he just offered me and he said, ‘Let’s go, fuckhead’…[4]
[4]Exhibit C, tape 1.
You went on to say:
This is so embarrassing. I honestly didn’t think I hurt him. He was literally offering me out the front like I was going to get fucking killed or something…and then I’ve kind of just fucking jobbed him because he was fucking…Mate, I was walking outside and with my family and he’s going, ‘Let’s go fuckhead, let’s go you little dog’, and all this, and I said, ‘What the fuck are you talking about, where you want to go?’…[5]
[5]Ibid, tape 2.
Asked to explain what you meant by ‘jobbing’ him, you said:
Well I mean I punched him in the fucking face because what you mean, what are you talking about, and I admit it. I’ll say it to the court. I’m not a bad guy. I fucked up…[6]
[6]Ibid, tape 2.
Treatment of Luke after the attack
The understandably distressed Tessa tended to Luke after his collapse with the assistance of bystanders. Within a short time, Casino staff administered cardio-pulmonary resuscitation. At 12.30am, paramedics arrived at the scene and found Luke to be in cardiac arrest. As a result of their efforts, Luke regained a pulse, but was unable to breathe on his own or regain consciousness.
Luke was conveyed to The Alfred Hospital by ambulance. A CT scan identified a large volume of subarachnoid haemorrhage and findings consistent with hypoxic ischaemic injury to the brain. It was determined that there was no cerebral blood flow. The injury was determined to be non-survivable. Luke remained on life support to enable family and friends to visit, and to arrange for organ procurement, consistent with the wishes of the family.
Life support having been turned off, Luke died on 29 March 2022.
Police interview; 27 March 2022
Having been arrested earlier in Spencer Street, you were conveyed to Melbourne West Police Station. An initial brief interview commenced at 1.55am on 27 March 2022, following which the process was suspended to enable time for you to sober up and be in a fit state for a more detailed interview. This commenced at 12.16pm on the same day.
At the time of the interview, you were informed that Luke was on life support in hospital. You repeatedly expressed your concern for his state, and regret for your involvement. You claimed that Luke had ‘offered you out’. You professed limited memory of the events. You said that Luke had been a ‘smart arse’ when he spoke to you, and that you then said, ‘Well let’s just have a go now then if you are gunna be smart’. He was mouthing off at you, you claimed. You said that you didn’t know if he was going to turn around and king-hit you or anything like that,[7] and you started the altercation by grabbing him. You said that you had grabbed each other and had a bit of a ‘scruffle’, as you called it, before you threw Luke to the ground, after which you walked away. You expressed regret about not having stayed to check on Luke’s condition, but stated that you had did not think at the time that you had hurt him. You denied any recollection of having struck Luke.
[7]Interview Q 502.
You said that at the time of the events, you were ‘kind of drunk’,[8] but ‘happy-drunk’ rather than ‘drunk-drunk’.[9]
[8]Ibid Q 378.
[9]Ibid Q 379.
You said that you were happy to admit that you had done the wrong thing. When asked what you thought the outcome might be if you punched someone in the head, you said, ‘In my straight mind, I think that the worst could happen’.[10]
[10]Ibid Q 474.
You said that you had had so many drinks and then ‘this guy really wanted to just have a go at me…I think I just kind of just had enough of him and I just yeah – tried to, like, get in a fight with him, I guess…Like, I think I kinda cracked it at him’.[11]
[11]Ibid QQ 476-480.
Autopsy
A post-mortem examination on Luke was carried out by Dr Heinrich Bouwer at the Victorian Institute of Forensic Medicine on 31 March 2022. The autopsy revealed evidence of blunt force trauma to the upper left side of the neck and jaw angle region with deep bruising to the muscles of the region. A full-thickness traumatic tear of the left intradural internal carotid artery was observed. This had resulted in widespread subarachnoid haemorrhage which had caused the death of Luke.
There was some evidence of haemorrhage in the region of the right vertebral artery, but that artery was not ruptured.
Personal background
Your personal background was set out in great detail in a document provided by your counsel to the Court entitled Annexure 1 – Personal Circumstances of the Accused,[12] in the main report of Dr Carroll,[13] in the character references tendered on your behalf,[14] and in the submissions of Ms Marcs. I will not set this background out in detail here, but have had regard to all of it.
[12]Exhibit 3.
[13]Exhibit 5.
[14]Exhibit 2.
You are now aged 28, having been born on 15 April 1995. You are the eldest of four children born to your mother Heidi Bourguignon and your father Wayne Armstrong. You grew up in Colac. You claim to have been exposed to violence within your family and within the community from a young age, including violence and bullying towards yourself. You also claim to have been exposed to drug use and excessive alcohol use.
You attended primary school in Colac before attending Colac Technical College, which you left after completing year 9. You were suspended once for fighting.
You entered the workforce, first at an abattoir and then working in fencing. You moved to a company called Timbertruss when you moved to live in Geelong, before starting your own fencing company not long before these events.
You commenced using alcohol when you were 13. At the age of 14 or so, you started using cannabis with your friends. You avoided being at home, shunned school, and found solace in the company of peers who also engaged in problematic drug and alcohol abuse.
When you were aged between 13 and 15, your parents’ relationship began to fall apart. The household was affected by their constant fighting and conflict. You began staying away from home in half-way houses occupied by troubled teenagers and others with nowhere to go.
You were 15 when your parents separated and divorced. This coincided with your leaving school and commencing to work in the abattoir. You split your time between halfway houses and your mother’s home.
You described your mother as having been, prior to the separation, a key supportive and stable figure for you and your siblings.[15] After the separation, however, you claim that she socialised more, used illicit drugs, and became unpredictable. She moved from Colac to Geelong with your siblings, leaving you feeling left behind by your parents, in circumstances where your father, having left the family unit, on your account made no effort to nurture a relationship with you, and moved on with his life.
[15]Exhibit 3 [16].
You did live for a period of time with your maternal grandmother who you describe as your ‘rock and best mate. More of a mother than my own mother’.[16] By this time, another key support of yours was Emily Hammond (‘Emily’), who is now your partner and the mother of your three children. Your grandmother was quite strict when you were living with her, and for fear of damaging your relationship with her, you moved from her home, commencing a period of homelessness, during which at times you lived in Emily’s car.
[16]Exhibit 3 [19].
In due course, you and Emily secured public housing. Emily is from a stable family, and whilst at the start, you were not on good terms with her mother, Kerrie Hammond (Mrs Hammond), this later changed. When Emily became pregnant with her first child when you were 18, at a time when you were grappling with your recent commencement of methylamphetamine use, Mrs Hammond stepped in, as you describe it, and consistently with what she claimed in a reference submitted as part of exhibit 2, assisted in shaping you into a better person. From that time, the Hammond family provided ongoing support to you, as you dealt with the challenges of your life as a young person.
When your first child was born, you re-entered the workforce at a timber mill, later moving into the area of fencing.
Seeking a fresh start away from the negative influences of Colac and your ongoing drug use, you and your partner and child moved to Geelong. You weaned yourself from your drug use, became sober, and cut ties with many of your old connections. You reinvented yourself as a family man and hard worker.
Two younger children followed, and your children are now aged 9, 5 and 2.
From the time your first child was born until you were remanded in custody on 21 December 2022, you remained in fulltime employment. Between the offence date and the date of remand, you experienced mental health issues, causing you to commence counselling with a psychologist, Steve McLachlan, whose report was tendered before me.[17]
[17]Exhibit 6.
With the ongoing support of you partner and wider family, you dealt with these issues, and remained leading a stable existence until your remand.
Since your entry into custody, you have fared well, completing a number of courses and working in the kitchen. You have been the subject of no disciplinary proceedings during that time.
Criminal history
You have a significant criminal history for violence as disclosed in the criminal record filed in your case. Ms Marcs acknowledged that the history is relevant and ‘speaks to a propensity to act violently whilst under the influence of alcohol’.[18]
[18]Exhibit 1 [47].
The criminal record contains a number of Children’s Court matters which are now in excess of ten years old. These comprised appearances at the Children’s Court in 2012 and 2013. The prosecutor Mr Johnston invited me to ignore these matters. I have done so.
For reasons which did not become entirely clear to me, but seemingly in support of submissions in respect of the considerations in Bugmy v The Queen[19] which she subsequently made, Ms Marcs in her written outline of submissions[20] provided summaries in relation to not only the matters on the criminal record to which I have just referred, but also a number of other dispositions by the Children’s Court preceding the appearances on the criminal record. These matters indicated involvement by you with the criminal justice system quite regularly from the age of 14.
[19](2013) 249 CLR 571 (‘Bugmy’).
[20]Exhibit 1.
In considering your criminal history, I have had no regard to these matters. A criminal record should contain only matters properly fitting the description of previous convictions. The term ‘previous conviction’ does not include a conviction or finding of guilt by a children’s court made more than 10 years before the hearing at which it is sought to be proved.[21]
[21]Criminal Procedure Act 2009 ss 3 and 244.
As for the relevant criminal history, it lives up to Ms Marcs’ concession that it indicates a propensity on your part to act violently whilst under the influence of alcohol. It also suggests an ongoing lack of respect for court orders.
The first relevant court appearance was in the Colac Magistrates’ Court on 29 September 2014. You pleaded guilty to charges of affray and assault in company. You were convicted and placed on a community correction order (‘CCO’) for 12 months with a requirement to perform unpaid community work, to be under supervision, and to undergo assessment and treatment for alcohol abuse as directed, an offending behaviour program as directed, and any other treatment as directed, including an anger management course.
The incident which led to these convictions occurred at a service station in Colac on 1 June 2014, when you were 19 years of age, and its seriousness reflects the seriousness of the disposition you received. You and your cousin Joshua, who was with you at the time of the present offending, attended inside the service station at the time when the victim, a man preparing to head off on a fishing trip with his two young sons in his car, was inside paying for fuel. You and your cousin used indecent language directed at the two female console operators, and were asked by the victim to be more respectful. After an exchange of words, the victim left the shop and walked back towards his car. You and Joshua approached the victim and he was pushed to the chest, causing him to stumble backwards. He was then punched, kneed to the back and thrown to the ground, causing his head to strike the tarmac. In that vulnerable position, he was set upon by you and Joshua with the use of punches and kicks. He sustained bruising and other injuries during the course of the attack. The fact of a charge of affray having been laid against you and your plea of guilty to it may be seen as a reflection of the seriousness of this public, drunken attack by you and your cousin.
On 9 July 2015, you were brought before Geelong Magistrates’ Court for contravening the CCO, in a manner not revealed in the criminal record. The contravention was proved and you were convicted and fined $500.
You were dealt with again for the original charges. A CCO for 8 months, with similar conditions, was imposed.
Again, you breached the CCO. The criminal record would suggest the breach was by the commission of further offences, namely failing an oral fluid test and other driving offences, for which you were convicted and fined $1000 and had your licence cancelled. The contravention was proven at Geelong Magistrates’ Court on 10 March 2016. Yet another CCO with conviction, this time for 8 months and with similar conditions, was imposed for the original offences of affray and assault in company.
On 14 July 2016, you were convicted and placed on yet another CCO at Geelong Magistrates’ Court, this time for offences of assaulting police and resisting police. This offending occurred on 11 October 2015, again in the streets of Colac. An altercation occurred amongst a group of people in the main street of the town. You were one of those present. While police were attempting to place another male in the rear of a police van, you persisted in approaching them and making a nuisance of yourself. You swung a punch and contacted the chin of a police member. You were then arrested, during the course of which you resisted arrest.
The CCO you received for this offending was for a duration of 12 months, again with similar conditions aimed at dealing with your alcohol problem and other issues.
Regrettably, you showed the same respect for this CCO as you had shown in the preceding years for all the other CCOs. You breached it, and were dealt with for the contravention at Geelong Magistrates’ Court on 13 November 2017. You were convicted and fined $250.
The charges of assault and resist police were heard again. Yet again, you were placed on a CCO, this time for a period of 12 months and with the same special conditions.
During the currency of that CCO, you attended the Melbourne Cricket Ground on 21 July 2018 to view a football match. During the game, you walked from your seating in the Ponsford Stand to attend a basement level bar situated in a food court. You were refused service, no doubt because you were drunk, and became abusive towards staff. Police arrived to attempt to resolve the situation. You continued with your irrational and aggressive behaviour. A decision was made to arrest you for being drunk in a public place. You vigorously resisted arrest, and four members were required to control and handcuff you. You continued your resistance and vulgar language as you were being walked along the concourse level towards the awaiting brawler van. You were taken to the ground after you lunged at one of the members. You were taken to the police station but were unable to be interviewed due to your severely intoxicated state.
In response to this offending, you were charged with assaulting an emergency worker on duty and unlawful assault. At Melbourne Magistrates’ Court on 4 October 2018, you were convicted and fined $1500.
By the time of this most recent conviction, you were 23 years of age.
Psychiatric material
Two reports of Dr Carroll dated 17 May 2023 and 28 May 2023 respectively were tendered before me and relied upon by Ms Marcs.[22] The contents of the reports were largely based upon Dr Carroll’s consultation with you in prison on 10 May 2023. He was provide with some background material concerning the case, including the CCTV footage, your police interview, and the prosecution opening.
[22]Exhibit 5.
In the course of your contact with Dr Carroll, it is apparent that you clearly expressed your remorse and regret at what you did in killing Luke.
Dr Carroll described you as having given an account of events to him that was ‘generally consistent with that provided in the Crown materials’.[23]
[23]Ibid [147].
With all due respect to Dr Carroll, a highly regarded psychiatrist who has frequently given evidence before this Court, there were a number of aspects of what you apparently reported to him which did not accord with the objective material, and in my view, were not truthful. I have already touched on some of these matters.
You claimed that Luke had said to you, ‘Let’s go out the front’, and that he, Luke, had then diverted to go out the door to which you and Joshua had been heading. You claimed to have a clear memory of what you perceived to be provocative behaviour on Luke’s part. His body language, you said, was consistent with his being provocative. You claimed that he said, ‘You want to go out the front? Let’s go outside’. You said, ‘I personally felt that he meant, “Let’s fight”’. You said that you were in shock and were a ‘little bit scared, I didn’t know if there were 10 blokes at the front’. You said that you had concern that Luke may have even had a knife, especially as he had a satchel with him. You claimed that you ‘made a decision to grab him to stop him’ and ‘I threw a punch, I jabbed him’. You described it as ‘just a little jab’, with no intention to knock Luke out. The punch was simply intended to ‘stop him’ and hence circumvent the risk of a more serious ‘punch on’. You wanted to pre-empt that risk and that it ‘felt like a footy fight’. You said that you felt the need to ‘get in early…just have it out with him’. You said that in hindsight, ‘I made a poor decision [because] of being intoxicated’.
Dr Carroll carried out some psychometric assessment of you. He formed the view that the results were consistent with his impression that you have no personality disorder.
He indicated his opinion that you did not suffer from any psychiatric disorder or other psychological condition at the time of your offending. The only significant pre-offence psychiatric disorder from which you suffered was an alcohol use disorder which appeared to have been in remission for several years at the time of your crime, notwithstanding your heavy consumption of alcohol on the day in question.
Whilst you appeared to be heavily intoxicated at the time, there was no evidence that you were suffering from alcohol-induced delirium or an alcoholic blackout.
As for you current status, you described a range of symptoms commonly seen in Post Traumatic Stress Disorder. However, the relevant stressor, namely, being made aware that you had caused the death of another person and subsequently being shown footage of the relevant conduct, does not meet the stressor criterion laid out in the diagnostic manuals. The appropriate diagnosis, therefore, is adjustment disorder with mixed anxiety and depressed mood.
Dr Carroll said, of this disorder, that it ‘will have a significant, albeit modest, effect on his ability to cope with imprisonment but is not likely to deteriorate further’. Indeed, he posited that it is possible that the condition will improve with the ’optimisation of his psychopharmacological treatment and receipt of further psychological treatment’. As to the former, he raised no concerns. As to the latter, he questioned whether you will receive sufficient psychological treatment whilst in prison.
Notwithstanding that reservation, Dr Carroll opined that the impacts of the events are ‘unlikely to remain manifest indefinitely as a condition of clinical severity’. The adjustment disorder, he said, is likely to be a temporary condition.
Dr Carroll stated that whilst you do not suffer from an alcohol use disorder, you have a problem with alcohol use in that it appears to predispose you to aggressive responding when you reach a state of intoxication.
In the circumstances of your proven history and your offending on this occasion, I can readily accept that opinion.
He indicated that you would certainly benefit from psychological treatment ‘to address both [your] alcohol use and its evident effects on [your] judgment and behaviour, ideally starting whilst in custody and continuing after release’. He further stated, ‘at this stage it is unclear whether a return to safe levels of drinking will ever be feasible for him’. He said that you would benefit from a period of supervision after release from prison wherein you would be required to entirely desist from alcohol use.
Towards the end of his first report, Dr Carroll, in response to a question asked by your solicitors, ‘Were there any psycho-social factors which may have influenced his behaviour; and any other matters you consider relevant’, indicated that in his view, you have clearly assimilated a number of ‘unhelpful scripts’ from your childhood experiences, as outlined earlier in his report. He indicated that by ‘scripts’ he meant sets of rules that guide behaviours in a given situation, often operating relatively automatically in the absence of reflective thought. They are shaped by values and norms, especially those ‘inculcated in the family context during one’s developmental years’.
Dr Carroll said the unhelpful scripts to which he referred included:
· that if a person behaves in a verbally provocative way i.e. is a smartarse, then they deserve physical punishment; and
· that a male must stand one’s ground if threatened, insulted or challenged by another male i.e. that it is inappropriate to back down in the face of perceived provocation by another man.[24]
[24]Ibid [199].
Dr Carroll opined that in recent years, at least when sober, you have been able to override these scripts and, for example, break up potential conflicts in sports games in which you have been involved.
He went on to express the following opinion:
On the night in question however, particularly in the latter part of the evening he was heavily intoxicated with alcohol and hence had a significantly reduced capacity for reflective thinking and self-control. In that context it appears that those unhelpful scripts rapidly came to dominate his thinking and behaviour when he perceived provocation from another male. As a result, he defaulted to an aggressive response of the kind that he more commonly engaged in as a younger man: he made the rapid decision to (as he saw it) pre-emptively forestall an attack upon himself by striking the first blow on a man whom he thought was planning to start a fight with him.[25]
[25]Ibid [201].
In his brief addendum report provided some days after the main report, Dr Carroll dealt with a question raised by your legal representatives concerning the relevance of two earlier incidents on the night of your attack upon Luke to his clinical findings. You had informed Dr Carroll about an incident within the Casino in which a young woman, believing you had touched her on the dancefloor, complained to her boyfriend who remonstrated with you, pushing you. You informed Dr Carroll that you had not reacted to this, and kept enjoying your evening.
Dr Carroll seemingly relied upon this incident as being consistent with the opinion he had formed that you do not demonstrate enduring, pathological personality traits of the kind associated with a persistent propensity for violence of the kind you demonstrated in the commission of your crime. Rather, both the current offence and your prior pattern of criminal offending show that the activation of the unhelpful scripts to which he referred and consequent engagement in aggressive behaviour is much more likely when your state of mind is temporarily affected by severe intoxication with alcohol, and a belief that a male has instigated aggression against you.
Bugmy issues
Your counsel advanced detailed submissions both in writing and orally in support of the contention that because of certain aspects of your family background, upbringing, and life more generally, the principles espoused by the High Court in Bugmy are enlivened in your case, leading to a reduction in your moral culpability and a corresponding reduction in the appropriate sentence.
Ms Marcs relied on the contention, largely made out by aspects of a number of character references tendered on your behalf from family members, and accounts you have given, that you were exposed from an early age to substance abuse and violence in the family home and the community in which you lived, and that this had a significant impact upon your perception of such behaviours, and led to the development in you, as explained by Dr Carroll, of unhealthy internal scripts centring around masculinity and aggression.
It was submitted that what was described as your ‘childhood social deprivation’ should be considered to reduce your moral culpability ‘because it obfuscated [your] ability to mature and learn appropriately’.[26] It was submitted that, as mentioned in Dr Carroll’s report, this was evidenced by the violence you witnessed and which was inflicted upon you, the traumatic and destabilising effect of your parents’ separation and your subsequent homelessness, your loss of education and your descent into drug abuse.
[26]Exhibit 1 [44].
It was further submitted that your exposure to violence and alcohol abuse from an early age explains why you may revert to violence when confronted by other men whilst intoxicated. Ms Marcs claimed support for this contention in the addendum report of Dr Carroll.
Mr Johnston disputed that the principles in Bugmy have application in your case, or that if they did, that the impact would be anything more than modest at best. First, it was submitted, that the evidence of your childhood and adolescent circumstances, while relevant in my instinctive synthesis in your case, did not rise to the level of profound, sustained deprivation or disadvantage of the kind present in Bugmy, DPP v Herrmann[27] and other cases in which the principles have been applied. Secondly, it was submitted that, in circumstances in which Dr Carroll’s conclusion about the activation of the unhelpful scripts to which he referred was seemingly predicated on an acceptance of your claim to him that you were in fear and launched a pre-emptive attack, the objective facts would not support your having had any perception that Luke posed a threat to you, hence calling into question Dr Carroll’s opinion that the so-called unhelpful scripts were activated on the occasion of your attack upon Luke.
[27][2021] VSCA 160 (‘Herrmann’).
A final submission made by Mr Johnston was that if I was, indeed, satisfied that you had developed these unhelpful scripts and that they had informed your behaviour on the occasion in question, that would then point to an increased need for community protection, consistent with the authorities.
I was taken in some detail during the plea to the principles set out in the decisions of Bugmy, Herrmann, and other relevant cases. It is not necessary in this sentence that I set out or summarise the principles, which are well known. Suffice to say that I have read and considered the authorities, considered the evidence in this case, including in detail the contents of all of the references provided on your behalf, and am firmly of the view that any level of disadvantage or deprivation to which you were exposed throughout your life was of nowhere near the order which would warrant a reduction in your moral culpability on account of the Bugmy principles.
In my view, with all due respect, Ms Marcs substantially overstated the level of disadvantage to which you were exposed as a child and young person, and the extent to which it may have influenced your future behaviour, including your present offending. The formulation of her submissions did not sit at all comfortably with the material upon which she sought to rely.
I am by no means satisfied that the unhelpful scripts referred to by Dr Carroll were indeed ‘assimilated’ by you as maintained by Dr Carroll, and less still that even if such scripts were in place, that they could have had any serious input into your offending in this case.
Your outrageous conduct in this case, I am satisfied, bore no connection at all to any perceived provocation from Luke, or any desire by you to forestall an attack upon you. On that score, I am satisfied that insofar as you told Dr Carroll that after the initial contact with Luke, you were scared and feared an attack from him, and that your attack upon him was a pre-emptive one designed to forestall such an attack, there was no truth to any of those claims. I am satisfied that you harboured no such feelings or fears, but that you sought to justify your conduct by dishonestly saying those things to Dr Carroll, in much the same way as you sought to justify your conduct to the police who arrested you as shown in the body-worn camera footage. This was not a case, as Ms Marcs argued, of your having had a subjective view of things that did not fit in with proven facts, but rather, of your endeavouring to misrepresent what your feelings and beliefs actually were.
Sadly, there is a much more plausible explanation for your conduct - conduct which Ms Marcs repeatedly described as ‘inexplicable’- than your being in some way governed by unhelpful scripts learnt in the past. Your conduct can certainly be described as inexcusable, but inexplicable it was not. The explanation is to be found in a proposition clearly advanced by Dr Carroll, conceded by Ms Marcs, and manifested by you on a number of occasions in the past. You have a problem with alcohol use, and excessive alcohol use appears to predispose you to aggressive and overtly violent behaviour. Unfortunately, to put it bluntly, you are a violent and dangerous person when drunk.
Notwithstanding my rejection of Ms Marcs’ submission as to the application of the Bugmy principles, as the prosecution conceded, that does not mean that the aspects of your personal background relied upon by Ms Marcs should be disregarded. I take all of your personal background into account as part of the factual background to your offending.
Verdins issues
Ms Marcs sought to rely on the principles in R v Verdins[28], based on an aspect of the report of Dr Carroll to which I have already referred.[29] Whilst there was no reliance on the Verdins principles to reduce your moral culpability or the importance of general or specific deterrence in your case, Ms Marcs indicated that she relied on the fourth limb of Verdins, by which I took her to mean the fifth limb, in a modest way. She submitted that the adjustment disorder with which you have been diagnosed will mean that you will experience more significant hardship in custody than would an offender not afflicted by that disorder.
[28](2007) 16 VR 269 (‘Verdins’).
[29]See [80] of these reasons.
The Court of Appeal in Verdins indicated that impaired mental functioning, whether temporary or permanent, is relevant to sentencing in at least six ways, the fifth one of which was:
The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person of normal health.[30]
[30]Verdins [32].
Dr Carroll posited in the relevant portion of his report that the condition with which he diagnosed you, which arose entirely in response to your finding out about the consequences of your crime, will have a significant, albeit modest, effect on your ability to cope with imprisonment. It is interesting to note, therefore, that there is no evidence that it has thus far had any such effect. Indeed, I have been told that you are getting on well in custody, have a job working in the kitchen, and have engaged in a number of courses since your incarceration.
In the circumstances, there is no reason to suppose that the modest and temporary condition from which you suffer will have any adverse effect upon you, or cause your sentence to weigh more heavily upon you than would be the case with a person of normal health. If I am wrong in that, in my view any such impact upon you would be infinitesimal.
In my view, the principles in Verdins have no application in your case.
Your plea of guilty and the question of remorse
You pleaded guilty at the earliest reasonable opportunity in this case. Your plea of guilty at that early stage is an important matter in mitigation of sentence. It is of great utilitarian value, and I am satisfied in your case, is reflective of the genuine remorse you now feel for your crime.
On the matter of remorse, I note the things you said to the arresting members in the body-worn camera footage, albeit at a time when you were unaware of the extent of Luke’s life-threatening injuries. You lied to the police about what had occurred, made a number of disrespectful comments about Luke, and gave an account as to his actions which I am satisfied was false. Indeed, as recently as 10 May 2023 when you spoke with Dr Carroll, as I earlier touched on, you persisted in lying about what was in your mind immediately prior to your attack upon Luke.
Having said those things, I am nonetheless satisfied that you are now fully remorseful for your actions, notwithstanding a very shaky start in which you departed the scene and immediately sought to obscure your true conduct. The development of genuine remorse is not necessarily an immediate and linear process. I am satisfied that by the time you appeared before me, you had reached the desirable end point of genuinely feeling very sorry and remorseful for your criminal conduct. I take that into account in your favour.
I note that the authorities dictate that a plea of guilty entered during the currency of the COVID-19 pandemic should be accorded more substantial weight in mitigation of sentence than a similar plea entered at a time when the community and the courts have not been impeded by the effects of the pandemic.[31]
[31]Worboyes v The Queen [2021] VSCA 169; Surtees v The King [2023] VSCA 42.
Whilst it is the case that fortunately, the effects of the pandemic have now largely passed, and in particular, custodial arrangement have almost returned to normal, you pleaded guilty at a time when substantial backlogs caused by the pandemic to the criminal justice system were still being felt. Your plea of guilty was all the more significant for that reason.
In short, I will substantially reduce the sentence I pass on you on account of your plea of guilty and remorse. That fact will be clearly demonstrated by the statement I will make pursuant to s 6AAA of the Act.
Victim impact statements
A total of 17 victim impacts statements were placed before the Court, many of them being read aloud by the authors, some being read by the prosecutor, and one, that of Tessa Penberthy, being submitted for me to read.
In her written outline, Ms Marcs fairly and correctly stated, of Luke, and the victim impact statements filed in this case, ‘The loss of his life is a terrible tragedy. The victim impact statements provided to the accused speak powerfully of the anguish, loss, misery and regret’.
As is sadly so often the case in this Court, the process which unfolded before me of the loved ones of a grievously missed and mourned young man setting down in writing and then placing orally before the Court the devastating effects upon them of the loss they have suffered, was both heartbreaking and enlightening.
To make specific mention of some portions of several of the statements is not intended to in any way belittle or undermine the importance of the entirety of the contents of all of the statements, but rather, to illustrate some features of the terrible damage your thoughtless and violent conduct has wrought upon its many victims beyond Luke himself. Having observed you throughout the process, I believe that the tragedy of what you have caused is not lost on you.
Luke’s mother Michelle Harris described having watched her son take his last breath in The Alfred Hospital in March 2022. She reflected on Luke having been handed to her 30 years ago as a 10 pound baby boy wrapped in a blue blanket and then, last year, being handed back to her in a blue box containing his ashes. Her world crashed down around her as she sat at the foot of the bed, clutching his ashes, sobbing uncontrollably. She recalled hearing the wails of Luke’s girlfriend in the background as she received the terrible call informing her that Luke had been assaulted and was being taken to hospital. She recalled seeing Luke’s lifeless body, and being told the grim news by the doctors. She wanted the earth to come up and swallow her and take her too. Her heart broke into a million pieces. His death when it came left her heartbroken, feeling that a piece of her heart had been taken, and that she was no longer the same person. The unanswered question of ‘Why’ goes over and over in her head every day. The family has been destroyed and she feels a sense of having been robbed of all of the years ahead she could have spent with her son. Those years will now be filled with an emptiness, a gaping void that nothing will ever be able to fill.
Luke’s father Brent Francis pointed out how hard it is to put into words the impact that the loss of Luke has had upon him. He indicated that he had a sense of only just beginning to know Luke. There was so much more to share, which had been taken away in the cruellest fashion. He feels that a part of him has been removed, and he will never get it back. He and his wife light a candle for Luke every night and tell him how much they love him, are proud of him, and are thinking of him. Luke was a bright star, with a massive heart, and loved by all.
Through the victim impact statement of Mr Francis, photographs of Luke and family members were introduced, and a recording of Luke and Mr Francis singing a karaoke song was played.
Through others of the statements, photographs and poems were introduced, stories were told, and statements were made, time and again illustrating what a wonderful young person Luke was, with a kind heart, a lovely and selfless disposition, and a bright future. Shining through it all was the unmistakeable fact that Luke was deeply loved by all who knew him.
Emily Harris, Luke’s sister, described Luke as her best friend and her entire world who had taught her so much in life and helped to shape and influence the person she is today. For weeks after his death, she called his phone to hear his voicemail message. Having a sibling taken violently changes you deeply and permanently, she stated. It changes your soul and every fibre of your existence is moulded into something unrecognisable.
Some of the authors spoke of the fear that the killing of Luke has engendered, fear of travelling to the Melbourne CBD, and fear for their own children or other loved ones who may be the victims of unprovoked assaults when they are simply out attending such public places as the MCG or shopping centres. Many spoke of the constant reminders in their lives of what they have lost, and of the fact that family occasions will be forever marred by the loss of Luke.
Tessa Penberthy described Luke as being young, handsome, fun, caring, thoughtful, full of life with a heart of absolute gold who was adored by his family, friends, her and anyone with whom he crossed paths. She also spoke of the guilt she feels at a number of things including the fact of her having encouraged Luke to attend the festival that day, and attend Crown on the way home. She said that she has been left with a hole in her heart that no one will ever be able to fill, and suffers anxiety, guilt and stress that will be with her for the rest of her life.
The one victim impact statement not from a family member or close friend of Luke was that of Brett Ohlin, an eyewitness to the attack upon Luke who has himself been traumatised by the event which played out in front of him in the food court at Crown Casino, including by feeling guilt himself over what occurred. As he put it:
I’m not a victim, I’m just a bloke with a heart who was in the wrong place at the wrong time, who wishes every day that things could have been different. It haunts me every day, the thought of could I have done more to save Luke’s life. Maybe, maybe not, all I know is I shouldn’t have to be haunted, but I am.
Whilst it might be observed that the guilt of which both Ms Penbethy and Mr Ohlin spoke is entirely unwarranted, and that no one should feel guilt about the death of Luke other than you, it is an illustration of the far-reaching and manifest effects of the death of Luke on those who loved him and others, in the case of Mr Ohlin, who did not know him at all, but were exposed to the trauma caused by your public and drunken display of aggression.
The victim impact statements are full of poignant and moving insights into the many ways that your crime has impacted upon the lives of the family and loved ones of Luke Francis. Whilst of course the contents of the victim impact statements must not be allowed to overwhelm the sentencing process, the victim impact statements provide an important insight into the profound grief and pain caused to so many as a direct consequence of your offending. I take the contents of the statements into account in sentencing you, as permitted and required by the applicable law.
Nature and gravity of the offence and your culpability and degree of responsibility
Yours is a serious example of the serious crime of manslaughter. The seriousness of the crime of manslaughter is clearly reflected in the maximum penalty, which, as recently as 2020, was increased by 25 per cent.
You went out in public, consuming a substantial amount of alcohol in circumstances where you had some insight into the obvious fact that such conduct could be problematic for you. That is not to say that your consumption of alcohol was an aggravating feature, but it was part of the background to your crime.
In that state, and in response to a momentary exchange with Luke, which could not possibly have occurred as you subsequently claimed, you chose to follow Luke from the Casino floor out into the food court. I am satisfied that you felt no intimidation or fear at all, and that Luke did not provoke you. All you felt was anger and aggression.
With no warning, you physically accosted Luke from behind, pushing him to the railing, and then as he commenced to turn towards you, you struck him to the neck and jaw area on his left hand side. This attack was not expected or anticipated by Luke and was a cowardly sneak-attack.
Not content with that, you tried to strike him again as others intervened. Then you did connect again with his jaw before grabbing him by the neck and continuing to try to get at him. Throughout the attack, Luke did not inflict or seek to inflict any violence on you, and was powerless to defend himself.
The short duration of the attack and the catastrophic consequences are testament to the ferocity and effectiveness of you conduct.
Having incapacitated Luke, and notwithstanding Tessa’s frantic efforts to repel you, you stood over him and lauded it over him, showing your total lack of concern for his welfare.
Your conduct thereafter up until part-way through your conversation with the arresting members of the police force was indicative of a blithe and continuing disregard for the plight of your victim.
This frightening attack occurred in a public place, exposing many people to the prospect of seeing an innocent person set upon and violently assaulted for no good reason. This fact also highlights your complete incapacity or unwillingness to control your anger, even in crowded public places monitored by CCTV cameras.
As I said, this is a serious instance of the crime of manslaughter. Ms Marcs, in her submissions, described your crime as being in the middle range of seriousness of manslaughter offending. The prosecution did not take issue with that contention. For what it is worth, noting that the Court of Appeal have, on occasions, spoken of the lack of real utility in labelling specific crimes as falling within any particular category or band of seriousness, I accept Ms Marcs’ contention.
As for your moral culpability for your offending, there is no question that it is very high.
Prospects of rehabilitation
Ms Marcs submitted that your more recent personal history, notwithstanding your troubled earlier years, demonstrates your ability to live a happy, calm and family oriented life. She submitted that I should find that you have moderate to good prospects of rehabilitation should you engage in treatment and abstain from alcohol. In respect of the treatment which you need, Ms Marcs proposed that you need:
intense psychological treatment in order to develop a sophisticated insight into the impact his childhood trauma has had on him and how it has laid down certain pathways that he will resort to if he’s drunk or his judgment’s compromised. He has to undo that, and that takes time and dedication.[32]
[32]Plea transcript 112.
There was an absence of any expert evidence indicating that you need any such treatment. What Dr Carroll said you would benefit from is psychological treatment to address your alcohol use and its evident effects on your judgment and behaviour.
In the circumstances of your prior criminal offending, and having regard to the crime for which I must sentence you, I do not accept that your prospects of rehabilitation are good, or even moderate. Your previous convictions illustrate quite well your propensity to commit acts of violence when drunk. Your ongoing failure to abide by court dispositions, and, it seems, to take advantage of supervision and any other treatment or assistance offered under a succession of CCOs, is concerning. Your overtly violent and aggressive conduct towards Luke on the occasion you attacked him was a return, as a man who was then 26 years of age and a father of three young children, to the same type of alcohol-fuelled violence directed towards innocent people in public places to which you showed yourself to be prone as a younger person.
It should have been obvious to you years ago that you should not drink to excess. And yet, you persisted in doing so.
Your prospects of rehabilitation in future depend largely on your being willing to cease drinking altogether, or at least to substantially reduce your intake.
As things currently stand, it is not possible to view your rehabilitative prospects in a favourable light.
Specific deterrence
Ms Marcs submitted that because of your response to your crime and your more recent incarceration, you have already been specifically deterred and specific deterrence should not play much of a part in the exercise of my sentencing discretion.
I do not accept that submission. In my view, the need to individually deter you is very strong, in circumstances in which you have entirely failed to heed the lessons in your past and modify you behaviour. You have failed to take advantage of a number of seemingly quite lenient dispositions imposed upon you in the past. The sentence I pass upon you must send you a very clear message.
Length of non-parole period
Ms Marcs urged me to impose what she described as ‘a comparatively lower non-parole period with a longer than average period to facilitate appropriate supervision in the community’.[33]
[33]Exhibit 1 [59].
At the heart of that submission, it seems, was Ms Marcs’ claim that you need the intense psychological treatment to which I referred earlier. As I said then, there was no evidence before me to indicate you need any such treatment.
Whilst I note the Court of Appeal have been at pains to point out that there is no ‘usual’ ratio of non-parole period to head sentence, I see no reason why there would be a need in your case for the length of the non-parole period to be reduced in order to increase the period of time for which you would be in the community under the supervision provided by parole.
The non-parole period I will specify will be the lowest term of imprisonment which I consider justice requires in your case, in light of all of the circumstances and the head sentence at which I arrive. It must be remembered that both the head sentence and the non-parole period must be appropriate in all of the circumstances, paying due regard to the purposes for which sentence is to be passed in your case.
Current sentencing practices
One of the matters I am required by law to take into account in arriving at a proper sentence is current sentencing practices.[34] In seeking to understand these, I have considered, amongst other things, the most recent applicable Sentencing Snapshot from the Sentencing Advisory Council.[35] I note, in respect of the Snapshot, that it encompasses statistics for the years 2015/16 to 2019/20, which means of course that the period covered preceded the increase in the maximum penalty for manslaughter which came into effect on 1 July 2020.
[34]Sentencing Act 1991, s 5(2)(b).
[35]Sentencing Snapshot 249: Sentencing Trends for Manslaughter in the Higher Court of Victoria 2015 to 2019-20 (‘the Snapshot’).
Amongst other things, the Snapshot reveals that for the 85 individuals who received terms of imprisonment for manslaughter during that period, sentences ranged from 1 year and 5 months to 13 years, with the median length of sentence being 9 years, the most common range of imprisonment being 9 to less than 10 years, and 30 of the 85 being imprisoned for 10 years or more.
I have also been assisted by the consideration of a number of other cases in which sentences for manslaughter have been passed, including a number of decisions placed before me by the parties concerning sentences for manslaughter carried out by the infliction of a punch or punches.[36] I note, of course, that in considering current sentencing practices, what I am required to have regard to are sentencing practices for the crime of manslaughter generally, and not only for cases of single or several punch manslaughters.
[36]DPP v McDonough [2023] VSC 352; DPP v Tiumali [2023] VSC 233; R v Lucas [2021] VSC 81; R v Rivett [2020] VSC 563; R v Nolan [2020] VSC 416; Esmaili v The Queen [2020] VSCA 63; Lee v The Queen [2018] VSCA 63; Vincec v The Queen [2018] VSCA 18.
There is a limit to the use of statistics and sentences passed in other cases, particularly in the case of a crime such as manslaughter which spans such a wide breadth of criminality. Where comparable cases are concerned, it must be remembered that no sentence passed in any other case amounts to a precedent for the sentence I must pass on you. At best, sentences in so-called comparable cases may provide a general guide or impression of the appropriate range. The reality is that even as between cases that may seem comparable, differences invariably abound in the factual circumstances and the circumstances of the offenders.
Both Mr Johnston and Ms Marcs referred me to the decision of the Court of Appeal in R v Vincec.[37] That was an application for leave to appeal against a sentence of eight years with a minimum of five years for a manslaughter brought about by the infliction of a single punch to the head. The applicant had pleaded guilty. The single ground of appeal was that the sentence and non-parole period were manifestly excessive. In refusing leave, the single judge hearing the application, Weinberg JA, had this to say:
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.
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 [a] half years’ and four and a half years’ imprisonment were increased, on appeal by the Crown, to nine years’ and eight years’ imprisonment respectively.
As the sentencing judge correctly noted, sentences for all forms of manslaughter have increased significantly in recent years. 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 indicates that, the average sentence for this offence is currently between about seven years and nine years’ imprisonment.[38]
[37][2018] VSCA 18 (‘Vincec’).
[38]Ibid [56]-[58].
I note that since these observations by Weinberg JA, the maximum penalty for manslaughter has been increased by a further 5 years.
To illustrate what I have said about the limitation on the utility of seemingly comparable cases, in the case of Vincec, which undeniably shares a number of features with your case, there were also a number of important distinctions from your case. First, the attack to which the applicant pleaded guilty occurred in the context of a disagreement between him and his victim, and did not involve him attacking the victim from behind. Secondly, the criminal history of the applicant, whilst containing some matters of violence, was neither as recent as yours, nor as significant, reflected in the sentencing judge’s decision to place ‘almost no weight’ on it.[39] Thirdly, the sentencing judge accepted that the applicant’s prospects of rehabilitation were very good.[40] Fourthly, the sentencing judge found that specific deterrence and protection of the community were not significant considerations.[41]
[39]The Queen v Vincec [2017] VSC 602 [40] (Riordan J).
[40]Ibid [42].
[41]Ibid [44].
Prevalence of the crime of manslaughter committed by one or more punches
Ms Marcs submitted that I should not have regard to the fact that crimes of the nature of that committed by you have become prevalent in our community. She maintained this position notwithstanding the fact that she herself, in putting forward a chart of comparable cases, highlighted five cases since 2018 in which the mode of manslaughter was one or more punches. In a number of those cases, the prevalence of that mode of manslaughter was specifically commented upon and relied upon.
In Vincec, for example, Weinberg JA stated:
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.[42]
[42]Ibid [66].
As was stated by Kyrou JA in Lee v The Queen:[43]
The judge correctly found that general deterrence was an important sentencing consideration. This is because death caused by individuals – particularly young men affected by alcohol – punching defenceless victims to the head has become a serious problem in our community and the courts need to send a clear message that such offending will be met by lengthy periods of imprisonment.[44]
[43][2018] VSCA 63.
[44]Ibid [75].
Even after being confronted with the passage from Vincec set out immediately above, Ms Marcs persisted in her submission that before the apparent prevalence of the type of offending carried out by you can feature as a relevant sentencing principle, ‘something more robust in terms of an evidentiary basis is required’.[45]
[45]Plea transcript 160.
I do not agree. For many years, it has been apparent that precisely the type of violent crime you carried out in this case has been a growing concern in our community and has become an all too common occurrence. This is obvious to the community, and has been frequently commented upon by judges of this Court and the Court of Appeal. Indeed, as long ago as 2014, the legislature, by means of the Crimes Amendment (Coward’s Punch Manslaughter and Other Matters) Act 2014, introduced a specific provision into the Crimes Act 1958 [46] which dictates that a single punch delivered to the head or neck is to be taken to be a dangerous act for the purposes of the law relating to manslaughter by unlawful and dangerous act. This was a clear indication of the concern felt by the legislature about the prevalence of offending of the type committed by you.
[46]Section 4A.
I take into account in sentencing you, amongst all of the other relevant matters, that the crime you carried out is of a type which is worryingly prevalent in our society.
Important sentencing considerations
As I have already indicated, and as was correctly conceded by your counsel, your crime was a serious one. You reduced yourself to a dangerous level of intoxication in a public place, and then, for no good reason at all, took the opportunity to follow, accost and set upon an entirely innocent young man simply going about his business, enjoying a night out with his girlfriend. He presented no threat to you at all. He offered no provocation to you at all. And yet you launched a violent, cowardly and unforgiveable attack upon him, resulting in his death. You persisted in attacking him after your initial violence, in spite of the efforts of others to stop you. Even after he was rendered helpless on the floor, as I said earlier, you lauded it over him, showing your contempt and disregard for him, before leaving the scene.
Your actions were those of a violent and drunken thug, and your conduct has brought about utter devastation to Luke and his family and friends. Such conduct causes enormous and justifiable anguish and concern in our wider community.
Your offending calls for the imposition of a substantial term of imprisonment, with a non-parole term which will itself be significant.
In arriving at an appropriate sentence, I have had regard to all of the matters urged on your behalf, and to all of the principles and circumstances which apply in this case, including the principle of parsimony enshrined in s 5(3) of the Act. I take into account in your favour the steps you have taken in recent years to get your life on more of an even footing. I also take into account in sentencing you the anguish which I know you will feel at the prospect and the reality of being separated from your children and partner while serving the term of imprisonment which the circumstances of your case demand.
To my mind, the important reasons for which sentence must be passed on you are just punishment, denunciation, general deterrence, specific deterrence, and protection of the community. You must be punished in a way which reflects the seriousness of your crime and amounts to an appropriate response to it. The sentence must communicate in clear terms this Court’s condemnation and disapproval on behalf of the community of your violent criminal conduct towards Luke Francis. Luke’s life was precious to him, his friends, his family, and the community in which he lived. As I said, this sort of unprovoked, drunken attack upon an innocent person in a public location is the sort of crime which would cause great dismay and concern in the community. You acted in the clear knowledge of the wrongfulness of your conduct, and whilst the acts of your crime did not take long to carry out, you had time to desist even after the first blow, and chose not to do so. In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to carry out unprovoked crimes of violence targeting innocent victims in public, that such conduct will be met with very strong punishment. You yourself must also be deterred personally from any future violent actions to which you may be disposed. It is clear to me that you do have a dangerous disposition for violence which has surfaced over the years on occasions when you have been intoxicated. You have not responded to sentences previously passed upon you, and have been unwilling or unable to bring your behaviour properly into line. As for the protection of the community, that, too, is an important sentencing consideration, and will be met by a substantial term of imprisonment, and a significant period of supervision in the community should you be released on parole at the end of the non-parole period. As for rehabilitation, I do not ignore that as a sentencing consideration, but for the reasons I have stated, it must, in your case, very much take a back seat to more prominent sentencing objectives.
Sentence
Tyson Armstrong, for the manslaughter of Luke Francis, you are sentenced to be imprisoned for 10 years.
I fix a period of 8 years during which you will not be eligible to be released on parole.
I declare a period of 191 days up to and including yesterday, 29 June 2023, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.
I state pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to be imprisoned for 13 years with a non-parole period of 10 years.
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