Director of Public Prosecutions v McPherson

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0031

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
QUINN DAVEY McPHERSON	Accused

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2025
DATE OF SENTENCE:	27 March 2025
CASE MAY BE CITED AS:	Director of Public Prosecutions v McPherson
MEDIUM NEUTRAL CITATION:	[2025] VSC 140

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CRIMINAL LAW – Sentence – Reckless conduct endangering life – Earlier sentence indication – Plea of guilty – Accused reckless as to the risk of death – Choke hold while wrestling – Under influence of alcohol and drug of dependence – Early guilty plea – Delay in prosecution – Gravity – Impact on victims – Youthful first offender – Good character – Strong prospects of rehabilitation – Specific and general deterrence – Community correction order imposed – Community Based Sentences (Interstate Transfer) Act 2015 (SA), Pt 3 – Crimes Act 1958 (Vic), s 22 – Criminal Procedure Act 2009 (Vic), ss 143, 144 – Sentencing Act 1991 (Vic), ss 5, 6AAA, 38, 45, 47, 48C, 48D – Sentencing Regulations 2021 (Vic), reg 15.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	N Kaddeche	Office of Public Prosecutions
For the Accused	P Smallwood with J Cleveland	Gallant Law

HIS HONOUR:

A. Introduction

Quinn Davey McPherson, on 6 February 2025 you pleaded guilty to recklessly engaging in conduct, without lawful excuse, that placed Alexander Reid Robinson (“Alex”) in danger of death, contrary to section 22 of the Crimes Act 1958 (Vic). You engaged in this conduct on 13 May 2023 by placing Alex in a choke hold.
The maximum penalty for this offence is 10 years’ imprisonment.

B. General comments about the nature of the conduct involved

You and your friends had a keen interest in mixed martial arts. Not only did you engage in this activity as a sporting endeavour, but you also saw it as a form of entertainment. For a number of years before Alex’s untimely death, you and your friends considered Ultimate Fighting Championship contests essential viewing. Not only did you watch these contests, but you and your friends would also engage in wrestling and other combative conduct. At times, the physical nature of that conduct could result in the loss of consciousness of those involved.
All of this was done in good spirits. There was much camaraderie between you all. However, such behaviour is dangerous and has the potential for catastrophic consequences; even more so, when it is engaged in while consuming illicit substances and large quantities of alcohol.
Tragically, you are now before the court for sentencing as those potential consequences have come to pass.

C. The offending and surrounding circumstances

You and Alex were close friends. Others in your friendship group included Calvin Quaziz (“Calvin”) and Taj Maguire (“Taj”). The 4 of you organised to attend a concert in Melbourne on Sunday, 14 May 2023. You decided to make a weekend of it and also attend a football match at the Melbourne Cricket Ground on the Friday before the concert.
You travelled with Calvin and Taj from Adelaide on the morning of 12 May 2023. You and your friends had a beer at Adelaide Airport before you departed. Your flight arrived in Melbourne at around 8.30am. Alex was already in Melbourne as he had been working here temporarily up to that time.
Calvin had booked a 2 bedroom apartment in La Trobe Street in Melbourne’s central business district for you all. The 3 of you arrived at about 9.45am, and Alex arrived about 20 minutes later.
After settling in, you went to a local pub or pubs and drank around 3 pints of beer each. You then purchased 2x1 litre bottles of vodka and a 24 bottle carton of Corona beer, together with some soft drink, before returning to the apartment. You all drank alcohol throughout the afternoon. At some point, Alex and Calvin went out and purchased a vape.
Shortly after 6.00pm, you all left the apartment and headed off to the football. By this time, Alex appeared to be drunk.
During the game, you all had about 6 drinks each of vodka and soft drink. At around 8.30pm, Alex was escorted from the ground by security and police because he had been vaping in the arena. Alex returned to the stadium and watched the remainder of the game with you all.
During the course of the game, Alex messaged his mother, Natalie, telling her that he was at the football and it was good.
After the game, you all left the stadium and arrived back at the apartment by around 11.00pm. About half an hour later, Calvin met with an unknown person and purchased 3.5 grams of cocaine, the cost of which was to be split up amongst the 4 of you. He returned to the apartment and you all partook in snorting cocaine as you continued to drink vodka. Not all the cocaine was used.
At around 12.20am on Saturday, 13 May 2023, you purchased 2x700ml bottles of vodka from a nearby bottle shop.
You then all decided to go to a nightclub in Prahran. You left the apartment at around 2.15am and entered the nightclub at around 3.40am. At the nightclub, Alex was separated from you. It was not known whether he drank more alcohol during that time. You and your other friends continued to drink alcohol.
The 4 of you left the nightclub together and arrived back at the apartment at 5.38am, where you continued to drink alcohol and take cocaine. Sometime after this, you and Alex were in a bedroom that you and Calvin were sharing.[1] Calvin went in and out of that bedroom a few times while you and Alex were lounging around using your phones. Everyone was getting on fine at the time. There was no suggestion of any conflict between any of you.
[1]Alex and Taj were sharing the other bedroom.
A friend of yours, Liam Cooper (“Liam”), was in Queensland and exchanged a number of Facebook messages with you between 7.54am and 8.19am. Liam also participated in video calls with the 4 of you in the apartment. When Liam was on the call, you were all sitting at a table and passing the phone around.
The messages between you and Liam included you stating that you were about to punch Alex. In another message, you indicated that Alex had been put to sleep. In a message sent only 3 minutes later, you said that Alex had been put to sleep 3 times in a row. The tone of the exchanges between you and Liam was light-hearted, and conveyed that it was all a bit of fun to you.
Around the same time, some of your other friends were assembled at a garage in the suburbs of Adelaide. They had been out partying throughout the night. At 8.51am, you made a video call to 1 of them, Jake Daszkowski (“Jake”). This call lasted 13 minutes. When it began, Jake could see you and Alex. While you were speaking with Jake, Alex may have said “hi” but otherwise did not say much. Jake thought Alex looked drunk, but otherwise alright.
Then you and Alex started play-fighting. Your phone had been propped up and sat still. It recorded the wrestling. Jake saw you put Alex in a choke hold. He did not watch the screen the whole time, but thought the choke hold lasted for around 5 minutes (although it might have been less than that).
Jake saw Alex’s face drop, go limp and change to a purplish colour. It looked as though Alex had passed out. Jake said to you that you had better stop, but you did not react. Jake ended the call as he was leaving with some friends. When he ended the call, you were still placing Alex in a choke hold and Alex was not moving.
Another friend in Adelaide, James Pretty (“James”), also saw you and Alex wrestling on the video call. He heard you say “watch this guys” or something similar before you jumped on Alex and put him in a choke hold. James watched the video call for about a minute before moving away.
Yet another friend in Adelaide, Tyler Mawson (“Tyler”), was also watching on. He saw you stand and say “watch this”, “this will be funny” or something similar. He saw you and Alex wrestle, before you put Alex in a choke hold. Although laughing at the time he said it, Tyler told you and Alex to be careful. Tyler only watched part of the video and only saw Alex in a choke hold for less than 30 seconds.
The video call ended around 9.04am. At around this time, you went into the living room where Taj was looking at his phone. You said to Taj that he should come quick. Taj walked into the bedroom from where you had come and said “what the fuck is going on”. He saw Alex hanging on the side of the bed. He was facing downwards. You picked up Alex and put him back on the bed. Taj saw that Alex’s face was blue. You said to him that you had been play-fighting and that Alex had lost consciousness.
Taj ran out of the bedroom and told Calvin to come in and to call an ambulance. Calvin went into the bedroom and saw Alex lying on the bed with blue lips. Calvin checked to see if Alex was breathing, but he could not hear anything.
At 9.11am, emergency services were called. The operator instructed you and Calvin to perform CPR,[2] which you did.
[2]Cardiopulmonary resuscitation.
Four minutes later, paramedics arrived to take over CPR. Other paramedics subsequently arrived and administered further treatments to try and resuscitate Alex. Alex remained unconscious and was unable to be resuscitated. At 10.23am, treatment stopped and Alex was declared deceased.

D. Events after the offending

After this, you said to Calvin that you did not mean to do it. You also had a number of telephone calls, including with your mother, Alex’s sister, Grace, and Alex’s mother, Natalie. You told Natalie that you had Alex in a headlock and that you did not realise he was not breathing until you looked at him and saw that his lips were blue. In your later conversation with Grace, you told her that you were wrestling, that you stopped and that Alex was just lying there; but when you looked over at him, you realised his lips were blue.
You were arrested that morning and taken to Melbourne West police station, where you agreed to a recorded interview. It is unnecessary to go into the detail. Although some of what you said might have been inconsistent with what occurred, on the whole your answers recorded that you had been drinking, taking cocaine and play-fighting before Alex became incapacitated and emergency services were called. You also volunteered that you had the remaining cocaine in your possession and gave it to police.
On 14 May 2023, an autopsy was performed on Alex. The cause of death was “undetermined”.
There was a delay of just over 5 months before you were charged, and then with the far more serious crime of manslaughter.
There was no delay in your guilty plea. To elaborate, on 16 February 2024, you were committed to this court as part of the fast-track process.[3] In June 2024, pre-trial cross-examination occurred.[4] Within a few days of this, those representing you wrote to the prosecution proposing a sentence indication application on the alternative charge to which you have now pleaded guilty. In late July 2024, the prosecution affirmed that manslaughter was the appropriate charge. A trial with a 15 day estimate was fixed to commence on 10 February 2025. You laboured under the weight of the charge of manslaughter right up until only 2 days before you pleaded guilty to the less serious charge of conduct endangering life.
[3]Criminal Procedure Act 2009 (Vic), ss 143-144.
[4]Ibid, s 198B.

E. Your circumstances

You are a young man. At the time of the offending you were 19 years old. You are now 21.
You have grown up in a loving home. You are the middle child and have 2 sisters. You live in the suburbs of Adelaide with your parents. You left school in year 12 and undertook an apprenticeship in carpentry, which you completed less than 2 months ago. You continue to be employed as a carpenter, though you have registered a business and hope to be able to work for yourself.
At the time of your friend Alex’s tragic death, your life gravitated around working during the week and then partying with your friends on weekends. You had a large friendship group and enjoyed nothing more than spending time with them.
Since 13 May 2023, your approach and attitude towards life has changed. You have attended counselling to seek help for the mental health issues that you have struggled with following Alex’s death. You have reduced the amount of alcohol you consume and have not used illicit substances.
Unsurprisingly, you have lost friends following the events surrounding Alex’s death, including those who were mutual friends with Alex. As a result, you have tried to focus on your health, work and relationships with your family and partner. You engage in almost daily exercise. You play team sports in both summer and winter.
You met Matilda Kaftan in September 2023 and commenced a relationship with her soon after. She works as an administrative assistant with the South Australian Department of Treasury and Finance. Her entry into your life has been, and continues to be, a source of positivity for you at a time when so many people in your social circles have had to grapple with the loss of Alex.
You have the support of a close, loving family. The court has been provided with character references that demonstrate the high regard in which you are held by those close to you, including both your immediate family and your partner’s family, as well as the broader community.[5]
[5]The references were given by Linda McPherson (your mother), Stuart McPherson (your father), Chelsea McPherson (your older sister), Kylie Rattray (Chelsea McPherson’s partner), Matilda Kaftan (your partner) and Sergeant Paul Kaftan (Matilda Kaftan’s father). Sergeant Kaftan is a member of the South Australian Police Force.
Those references attest that, in spite of the terrible pain felt by all of those who knew Alex, and the particular remorse that you feel, you have done your best to respond to those challenging circumstances in as constructive a manner as you can.

F. Alex’s circumstances

Alex also came from a loving family, was born in South Australia and lived in the suburbs of Adelaide.
Alex was 20 years old at the time of his death.[6] His mates called him “Robbo”. He enjoyed partying with his mates, but could also be counted on to be a source of support for them when they were in need.
[6]Alex was born on 3 January 2003.
Like you, Alex was an apprentice, though as a refrigeration mechanic rather than a carpenter. You had been good friends since you attended the same high school together, and you continued to catch up with each other regularly after leaving school.
He was a keen sportsman, playing cricket, football and lacrosse. As well as playing sport, he enjoyed watching sport and chatting with people about how his team was going.
Alex was an integral part of his family circle. Whilst his family have described his sensitivity and his affinity with animals, they also cherished the more outgoing, fun aspects of his personality.
His absence is sorely felt at family gatherings. To his family, he was an entertainer with an infectious smile that lit up the room when they were together. They are understandably devastated at the loss of Alex and wish that he was still here to join in all the moments that make a family’s shared existence so special.
While the weekend on which he tragically lost his life involved partying, in the months preceding that weekend, Alex had expressed some dissatisfaction with that way of life and was interested in finding more fulfilling ways of spending his spare time. Sadly, he will never have the opportunity to mature beyond the tender age of 20, to realise his full potential or to explore any of the other life paths down which he may have otherwise travelled.

G. Sentencing guidelines and considerations

G.1 Governing principles

The only purposes for which a sentence may be imposed are prescribed in the Sentencing Act 1991 (Vic).[7]
[7]Section 5(1).
Those purposes include to punish the offender to an extent and in a manner which is just in all of the circumstances; deter the offender or other persons from committing offences of the same or a similar character; establish conditions which may facilitate rehabilitation; manifest the denunciation of the offending conduct; and protect the community from the offender.[8]
[8]See also Veen v The Queen (No 2) (1988) 164 CLR 465, 476.8 (Mason CJ, Brennan, Dawson and Toohey JJ).
In sentencing you, I must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.[9]
[9]Sentencing Act, s 5(3).
I must also have regard to a number of other considerations, including but not limited to the maximum penalty prescribed for the offence; any current sentencing practices; the nature and gravity of the offence; your culpability and degree of responsibility; the impact on victims; and the presence of any aggravating or mitigating factors.[10]
[10]Ibid, s 5(2). See also R v AB(No 2) (2008) 18 VR 391, 405 [45]-[46] (Warren CJ, Maxwell P and Redlich JA). The weight and emphasis to be given to various factors is a discretionary exercise which depends on the facts and circumstances of each case: Director of Public Prosecutions (Victoria) v Dalgliesh (2017) 262 CLR 428, 434 [7] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ); Markarian v The Queen (2005) 228 CLR 357, 371 [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
Through a process of instinctive synthesis, I must balance these factors, which may point in different and conflicting directions, in order to arrive at a sentence that is just in all the circumstances.[11]
[11]Director of Public Prosecutions (Victoria) v Dalgliesh (2017) 262 CLR 428, 434 [5] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ), citing Wong v The Queen (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ). See also Markarian v The Queen (2005) 228 CLR 357, 373-375 [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

G.2 Nature and gravity of offence

The court must ensure just punishment. What is just in part depends upon the nature and gravity of the offending.
The parties agreed that the circumstances of this case are unique and quite different to many other examples of this type of offending conduct. There is an absence of certain features that are found in many other cases of reckless endangerment, such as the reckless use of firearms or reckless driving.[12]
[12]Compare Director of Public Prosecutions v Campbell [2023] VSC 691, [84] (Jane Dixon J).
The prosecution agreed that your offending conduct was at the lower to mid end of the scale of this type of offence. You and Alex were close friends and had been for many years. Play-fighting was routine within your friendship circle and your conduct was not motivated by any hostility towards Alex.
Importantly, the charge to which you have pleaded guilty does not involve sentencing you for causing Alex’s death.[13] Equally, it is not permissible for the court to have regard to his death as an aggravating circumstance.[14]
[13]Ibid, [89].
[14]Director of Public Prosecutions v Majok [2017] VSCA 135, [43] (Priest, Kyrou and Kaye JJA), citing R v Newman & Turnbull [1997] 1 VR 146, 150-152 (Winneke P, with whom Crockett AJA agreed); R v Lam [2006] VSCA 162, [24] (Ashley JA, with whom Redlich JA and Bell AJA agreed).
However, Alex’s death is relevant to an appreciation of the seriousness of the danger to which you exposed him. It demonstrates that the risk created by your actions was not artificial or hypothetical, and that the choke hold you placed him in was an inherently dangerous act.[15] In that way, it is relevant to the gravity of your offending.[16]
[15]Director of Public Prosecutions v Campbell [2023] VSC 691, [28], citing Director of Public Prosecutions v Majok [2017] VSCA 135, [44]; R v Natale [2019] VSC 30, [22]-[23] (Taylor J).
[16]Director of Public Prosecutions v Majok [2017] VSCA 135,[44], citing R v Lam [2006] VSCA 162, [19].

By your plea of guilty, you accept that you foresaw that an appreciable risk of death was a probable consequence of your conduct. In light of your youth, having foreseen the appreciable risk of death, I accept that you were less likely due to your age to have had an appropriate appreciation of that risk or its consequences compared with someone of more mature years.[17]
[17]Ibid, [54]-[56].

G.3 Youthful first offender and prospects of rehabilitation

You have no prior convictions, nor any subsequent convictions or charges pending. You are entitled to be sentenced as a youthful first offender.[18]
[18]R v Mills [1998] 4 VR 235, 241.6 (Batt JA, with whom Phillips CJ and Charles JA agreed).
You now live a very structured and focused life. You remain a hard-working and dedicated individual. The prosecution accepted that there were minimal to no prospects of you reoffending.

G.4 Remorse and guilty plea

You are extremely remorseful. Alex was your friend and there is no doubt you will suffer the burden of his loss for the remainder of your life. In a letter to the court, you acknowledged that you took full responsibility for your conduct. Further, your words directed to Natalie were plainly genuine and heartfelt.
Consistent with this remorse, you have pleaded guilty at the earliest reasonable opportunity. Such a position has considerable utilitarian value.[19] It saves all involved from going through the traumatic experience of a trial involving the painful circumstances of this case. It is also relevant that your plea has a significant benefit to the availability of court resources and the resources of the community more generally.
[19]Sentencing Act, s 5(2)(e).

G.5 Impact on victims

A total of 7 victim impact statements were relied upon. A number of these were read in court in what can only be described as gut-wrenching circumstances. As an integral part of his family, his friendship group and his community more generally, the loss of Alex was devastating to many and will have a lasting effect, particularly to his family and close friends.
Each of the victim impact statements is relevant and indicates the grief and suffering you have caused. While your sentence must be based upon an objective assessment of the facts and principles, the serious effect of Alex’s death must be kept in mind.[20]
[20]Noting that Alex’s death is not an element of the offence, nor an aggravating circumstance: see par 56 above.

G.6 Delay

The history set out above shows there has been considerable delay in the prosecution of this matter, none of which has been caused by you. The prosecution accepted such a delay of more than 20 months has weighed heavily over you and is a mitigating factor.

G.7 Current sentencing practices

Current sentencing practices are a factor, though not a controlling factor,[21] to be taken into account as part of the instinctive synthesis.
[21]Director of Public Prosecutions (Victoria) v Dalgliesh (2017) 262 CLR 428, 445 [50]-[52], 447 [56], 448-449 [63], 450 [68] (Kiefel CJ, Bell and Keane JJ), 453-454 [82] (Gageler and Gordon JJ). This is so whether or not an accused pleads guilty; ibid, 449-450 [64]-[68], 454-455 [85].
The court was referred to a number of cases involving sentences for reckless conduct endangering life. I have taken those cases into account, but note that truly comparable cases are difficult to find and the outcomes in those cases largely reflect the diverse factual circumstances behind each case.[22]
[22]R v Madex [2020] VSC 145, [53] (Incerti J). See also Navaratnam v The Queen [2021] VSCA 26, [30] (Ferguson CJ and McLeish JA); Director of Public Prosecutions v Reid (2020) 94 MVR 103, 124 [101] (Priest, T Forrest and Weinberg JJA). The most factually similar of those sentences is Director of Public Prosecutions v Campbell [2023] VSC 691. In that case, the accused intervened in a fight between a couple, pulling the male victim away from the victim’s female partner. The neck compression he applied to the victim in the process resulted in the victim’s death. The accused was convicted and sentenced to 249 days’ imprisonment, which had already been served by way of pre-sentence detention, in combination with a community correction order for 18 months.

H. Appropriate form of penalty

The prosecution accepted, both at the sentence indication hearing and at the plea hearing, that a non-custodial sentence, namely, a community correction order, was within the range of appropriate sentences. Community correction orders are regarded as a flexible sentencing option that enable punitive and rehabilitative purposes to be served simultaneously.[23]
[23]Boulton v The Queen (2014) 46 VR 308, 311 [2] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
The Sentencing Act requires that at least 1 discretionary condition is imposed on any community correction order,[24] which may include unpaid community work.[25] Beyond the standard conditions, it was not suggested that anything other than unpaid community work for a specified number of hours, as well as a treatment and rehabilitation condition for assessment and treatment of drug and alcohol abuse or dependency, including testing,[26] ought to be imposed. These conditions have been explained to you by community correctional services and you have agreed to comply with them.
[24]Sentencing Act, s 47(1).
[25]Ibid, s 48C(1).
[26]Ibid, s 48D(1), (3)(a)-(b).

Conviction and sentence

In all the circumstances, in balancing the relevant factors as best as I am able, upon a conviction being entered, a community correction order will be made, commencing on a date not less than 3 months after the making of the order[27] so as to allow sufficient time for arrangements to be made to transfer the operation of the order to your home state of South Australia.[28]
[27]A community correction order (not imposed in combination with a term of imprisonment) must commence on a date specified by the court that is not later than 3 months after the making of the order: ibid, s 38(2).
[28]Pursuant to Pt 3 of the Community Based Sentences (Interstate Transfer) Act 2015 (SA).
The order will have attached to it both an unpaid community work condition of 200 hours over 3 years, as well as a drug and alcohol assessment and treatment condition. Any and all hours satisfactorily undertaken for treatment and rehabilitation will be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
Pursuant to section 45(1) of the Sentencing Act, the order will contain the following standard conditions:
(1)You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
(2)You must comply with any obligation or requirement prescribed by the regulations.[29]
(3)You must report to, and receive visits from the Secretary [to the Department of Justice and Community Safety (“the Secretary”)] during the period of the order.
(4)You must report to the community corrections centre specified in the order within 2 clear working days after the order coming into force.[30]
(5)You must notify the Secretary of any change of address or employment within 2 clear working days after the change.
(6)You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary.
(7)You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
[29]See Sentencing Regulations 2021 (Vic), reg 15.
[30]You will be directed for this to be done either in-person or by telephone to Wangaratta Justice Service Centre of Corrections Victoria.
Pursuant to section 6AAA of the Sentencing Act, I declare that, but for your plea of guilty, if you had been found guilty of the offence charged after pleading not guilty, I would have imposed upon you a sentence of 300 hours of unpaid community work and a drug and alcohol assessment and treatment condition by way of a community correction order.

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[2025] VSC 140

27 March 2025