DPP v McGill

[2008] VSC 499

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1403 of 2007

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

DARREN JOHN McGILL

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 & 15 AUGUST, 12 & 26 SEPTEMBER, 22 OCTOBER 2008
DATE OF SENTENCE:	18 NOVEMBER 2008
CASE MAY BE CITED AS:	DPP v McGILL
MEDIUM NEUTRAL CITATION:	[2008] VSC 499

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CRIMINAL LAW – Sentence – Manslaughter – Death of fellow boarder – Penetrating stab wounds intersecting the right lung and the aorta at its juncture with the heart – Plea of guilty – Remorse – Major depressive illness of moderate severity – Effect on sentence – Sentence of seven years’ imprisonment – Minimum six years - Effect of s 6AAA of Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Lincoln	Stuart Ward, Acting Solicitor for Public Prosecutions
For the Defendant	Mr J. Sutton	Rainer Martini & Associates

HIS HONOUR:

1. Craig Hinton died on 9 December 2006.  You, Darren McGill, have pleaded guilty to his manslaughter.  The maximum penalty for manslaughter is 20 years' imprisonment.  In your case, the act by which the crime was constituted was not only a conscious and voluntary act on your part but was also one that was unlawful and dangerous.  Dangerous, that is, in the sense that a reasonable person in your position must have realised that Mr Hinton was thereby exposed to an appreciable risk of serious injury.

1. It is of course relevant to note the context in which the fatal assault occurred.  I take this in part from the prosecutor's opening, with reference also to the submissions made by your counsel about that opening. 

1. For some six months or so before 9 December 2006, you had been a resident at a boarding house in Middleborough Road, South Blackburn.  Mr Hinton became a resident there in about October that year.  He occupied room 2, while you had been allocated room 6.  Each of you had a female companion.  One of them, Kylie Thompson (Mr Hinton's partner) was also a resident at the boarding house.  The other, Dianne Minnie, had in the days leading up to the fatal incident shared your room.  But your relationship with her was of weeks only, whereas Mr Hinton and Ms Thompson had been together for two years or thereabouts. 

1. The two women had known each other for about the same period.  Their relationship, however, was strained to the point of real bitterness.  Both you and Mr Hinton were drawn into the enmity between them.

1. On 2 December, Ms Minnie threw a brick through Ms Thompson's window.  This form of diplomacy did nothing to ease the tension in the boarding house - which was further heightened when the broken window was reported to the police.  You and Ms Minnie formed the belief, it seems with justification, that Ms Thompson was the informer; or, as the residents of the boarding house described anybody who went to the police in this way, a “dog”. 

1. It was in those circumstances that on Friday 8 December 2006 Ms Minnie confronted Ms Thompson.  Some heat was generated.  Indeed, the prosecution allege that you became so overheated that you punched and kicked holes in the internal walls of the home.  Your counsel disputed this.  Be that as it may, he did not dispute that in the heat of the moment you forgot that relationships between you and Ms Thompson were, as your counsel submitted, generally good. 

1. Indeed, your agitation was such that, on that Friday, you called Ms Thompson "a fucking slut" and said that “others would get hurt.”  Not surprisingly, Mr Hinton and two other residents, Adam McPherson and Timothy Benison, reacted adversely to this.  They confronted you.  You pushed Mr Hinton, and he then punched you twice in the face.  He was armed with a knife, but did not use it.  It seems that it was for defence only.

1. It is impossible to excuse the behaviour I have just described.  It did however offer some slim chance that the parties to it might step back in the realisation that things were dangerously close to tragedy.  Here was an opportunity to realise how unacceptable was the climate of fear and animosity being generated at your boarding house.  You had time to think about those things.  At least you did not prolong the fracas with Mr Hinton, Mr McPherson and Mr Benison.  You retired to your room. This should have been the occasion to rethink about your relationships with your fellow residents.  It seems that the chance was missed.

1. Far from seizing the opportunity to cool off, you walked past Mr Hinton during the morning of the very next day, and drew your finger across your throat in a slashing motion.  About an hour later you compounded that stupidity.  You returned to the residence and began yelling threats at those inside.

1. Your counsel, Mr Sutton, submitted on your behalf that you were brought into the hostilities, not as a principal instigator, but as a partner of Ms Minnie: the two principal protagonists being her and Ms Thompson.  I am prepared to accept that this was so. 

1. Mr Sutton also points out that you were the only resident in full long term employment.  As such, you had to overcome the difficulty of arriving home after work, day after day for several weeks before 9 December, to a scene of bitter hostility.  This was especially hard because of your basically friendly relationship with Ms Thompson.  You had, indeed, assisted her at about this time in finding a job.

1. It is difficult to come to firm conclusions about the conflicts in the evidence upon which were based the submissions made on your plea.  I have not had the advantage of any of it being called before me.  I do accept, however, that neither you nor Mr Hinton were the principal generators of hostility.  That unfortunate mantle falls on the two women.  Indeed, you attempted to divorce yourself from the conflict by finding alternative accommodation immediately before, or perhaps some time before, the events of 9 December.

1. I nevertheless do not accept that you were a merely passive member of Ms Minnie's camp, responding to things that were happening around you. You blamed Ms Thompson for reporting Ms Minnie to the police for throwing a brick through Mr Thompson's window; and you were at least as responsible as Mr Hinton for the fight which occurred on Friday 8 December.  As I have said, you pushed him and he then punched you.

1. It is to your credit that you did not retaliate following those punches.  That credit, however, is to be set against what you did the next morning. I have described the slashing motion which you made as you passed Mr Hinton.  

1. I am satisfied, beyond reasonable doubt, that you were also one of those responsible for a hostile confrontation in the kitchen of the boarding house on the evening of 9 December.  During that confrontation, Ms Thompson and Ms Minnie fought with each other and Ms Minnie was, it seems, knocked unconscious.  Ms Thompson, I am satisfied, was primarily responsible for this.  You maintain that you were defending Ms Minnie and yourself.  In my opinion this is partly true; but it is not the whole story.  You made your own contribution to the aggression.

1. Weapons were produced, although the evidence does not satisfy me that Mr Hinton was armed.  You had a knife.  Adam McPherson had a tomahawk.  He may have struck you with it.  If he did, the wounds were superficial.  You by contrast plunged a knife into Mr Hinton's chest.  The consequences were fatal.

1. You gave yourself up to the police on Sunday 10 December.  After negotiations with the authorities, your willingness to plead to a charge of manslaughter resulted in that plea being accepted on 15 August this year.  This avoided a trial which was about to begin, with all the hardship that trial would have inflicted upon Ms Thompson and the other witnesses, as well as on Mr Hinton's family.

1. You were born on 20 June 1969. You left school at the age of 15.  Within a few years of that, you recorded your first conviction.  It was for theft.  There followed a succession of convictions, some for dishonesty but most for violence.  In September 1997 you suffered your first period of actual incarceration, you having before that been sentenced to a term of imprisonment which was wholly suspended for 12 months. 

1. Many further convictions, each of them imposed by the Magistrates' Court at Ringwood, followed. Yours has been a most undistinguished career. 

1. You suffer from a major depressive illness.  It is of psychotic intensity, although you are placed within the moderate range of major depression.  I accept that you suffered from this illness at the time you killed Mr Hinton.  This would have affected your judgement at that time, causing you to act with less restraint and greater impulsivity than otherwise.  As a psychiatrist, Dr Paul Grech, said in a report dated 25 September 2008:

His [that is, your] depression would have affected his judgment and behaviour on or about 9 December 2006.  The quality of his cognition would have been impaired by his depression, it would have caused him to act with less restraint and greater impulsivity.  His thinking at the time would be expected to be marked by a tendency to catastrophise and by a heightened fight or flight impulse. He would be likely to over react and his interpretation of and response to external stimuli, particularly any threat to himself or others, would be likely to be more extreme, less reliable and would be lacking in the nuances that one would expect of a healthy person.  The contemporaneous accounts of Mr McGill's behaviour contained in the depositions, including his own accounts, also provide contemporaneous evidence of just the sorts of cognitive defects one would expect of a person suffering from a major depressive illness.

1. Although Dr Grech's report was attacked by the prosecutor, Mr Lincoln, I accept these conclusions.  I accept accordingly that your moral culpability for the death of Mr Hinton is lessened, although I also accept that you played your part over some 24 hours in bringing about the circumstances in which his tragic death took place. 

1. Your actions were not merely impulsive.  They were not merely limited to a short period of violent confrontation immediately before you stabbed your victim.  You assisted in stoking the flames of violence that flickered into life on Friday 8 December and were subsequently fed so effectively that 24 hours later Mr Hinton was dead.  I therefore do not accept that your moral culpability was, as your counsel submitted, significantly reduced.

1. I have, nevertheless, taken your illness into account in assessing the issues of general and specific deterrence.  Your major depressive illness means that your sentence is not as significant for the purposes of general deterrence as otherwise it would be; and while you understood what was happening on 9 December 2006, and recognised that you were very much a part of the growing confrontational tension, your capacity for calm and rational responses was reduced by your mental state.  The issue of specific deterrence must be viewed in this light.

1. I accept that your major depressive illness will have the consequence that imprisonment will weigh more heavily on you than it would on a person of normal health.  I also accept Dr Grech in concluding that imprisonment will have an adverse, perhaps a significantly adverse, effect on your illness.  In deciding upon an appropriate sentence, I have taken into account those parts of the victim impact statements that are admissible.  They demonstrate that Mr Hinton's parents as well as Ms Thompson have been very severely affected by the loss of Mr Hinton.  It is to your credit that you recognise the real and lasting pain you have caused these victims of your violence.  I accept that you are remorseful.

1. I think that there is some prospect of your rehabilitation.  You have now an improving and perhaps good relationship with your son.  This holds out some promise for your ability to form appropriate relationships in the future.  Your work record in the 18 months or so before December 2006 was good, as your employer has said.  This too gives some grounds for confidence in your prospects of rehabilitation, although your conviction for drug offences in May 2006 points in the other direction.

1. Taking into account all the matters to which I must have regard, including those specified in sub-s.2 of s.5 of the Sentencing Act1991, I have concluded that an appropriate sentence in your case is one of seven years' imprisonment.  Had you not pleaded guilty I would have imposed a sentence of eight years' imprisonment.  I order that you serve a period of six years' imprisonment before becoming eligible for parole.  I declare that 710 days' imprisonment have already been served pursuant to this sentence.  I direct that that fact be entered in the records of the court.

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