DPP v Wilson
[2002] VSC 299
•24 July 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MILDURA
CRIMINAL DIVISION
No. 1426 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIONEL TROY WILSON |
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JUDGE: | Cummins J | |
WHERE HELD: | Mildura | |
DATES OF HEARING: | 22, 24 July 2002 | |
DATE OF SENTENCE: | 24 July 2002 | |
CASE MAY BE CITED AS: | DPP v Lionel Troy Wilson | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 299 | |
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Criminal law – sentencing – manslaughter – unlawful and dangerous act – causation – medically unexpected death – alcohol abuse – accused indigenous Australian – considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr J. Leckie | OPP |
| For the Accused | Mr R. Backwell | Victoria Legal Aid |
HIS HONOUR:
Mr Wilson, you have pleaded guilty before this court to the manslaughter at Mildura on 16 April 2001 of Mr Darren Benning.
Easter Sunday, 15 April 2001, commenced unhappily like many others for you, as a day of drinking alcohol and a day lacking in any positive interest. At the time you were sharing with others a camp site on the riverbank. The camp was on the south bank of the Murray River, 500 metres west of Etiwanda Avenue, Mildura and not far from the houseboats. It was about a ten minute walk from the Mildura Shopping Centre.
You and your female partner, Stephanie Taylor, had joined the camp the previous Thursday. There were five other persons at the camp, including John Ferguson, who cannot now be found and who was unable to be found at the time of the committal in February this year, Steven Wise, who is now deceased but unrelated to this matter, and Darren Benning, whose death was caused by your actions that day.
Unfortunately the alcohol that you were consuming at the camp was methylated spirits, a most harmful and deleterious substance.
On the Sunday, you and Ms Taylor had been in town at the top lawns opposite the Grand Hotel. You both were with Mr Ferguson, Mr Wise, the deceased and others. They returned to the camp. Ms Taylor wanted you both to remain in Mildura where her family lived, but you wanted her and you to return to the camp. You argued with her and she agreed to return to the camp. On the way there past the Chaffey Bridge, the argument continued and you picked up a stick from the ground and hit Ms Taylor's ankle with it. During the day you had been drinking Moselle and beer. You both were drunk. It was a nasty blow and it hurt Ms Taylor, so much so that almost 24 hours later she was observed to be walking with a limp. That conduct by you to Ms Taylor was totally unacceptable, Mr Wilson. You then piggy-backed her to the campsite arriving there at 6.30 p.m.
The drinking and the arguing continued at the campsite. You all were drunk. At one point the deceased verbally intervened between you and Ms Taylor, telling you to stop arguing, and calling you a mother-fucker. In anger, both at being so called and at the fact of interference, you picked up another stick and took to Mr Benning. You hit him once around the shoulders which knocked him to the ground, and then while he was on the ground you hit him to the head four to six times. You hit Mr Benning in anger. You did not intend to seriously injure him, and you certainly did not intend to cause his death. In Question 84 in a police interview on Monday, 16 April, 2001 you said that you "just wanted to crack him, you know, not bash him like what I did". By "crack him" you meant hit him: question 85. Mr Benning fell down the river bank. You brought him back up, put a blanket over him, got some water and poured it on his head.
In hitting Mr Benning you held the stick in one hand, not two. The assault was brief. But once again, Mr Wilson, your conduct was totally unacceptable - this time with tragic consequences.
It got dark. Mr Benning remained conscious. He went and lay down on the sleeping bag. You helped him to get comfortable. Then in an alcoholic haze you all went to sleep. If help had been obtained for Mr Benning that night, he would be alive today.
Through the night the temperature dropped and Mr Benning bled. At 5.00 a.m. the kookaburras woke up Mr Ferguson. He put more wood on the fire, including the stick you had beaten Mr Benning with. It was consumed in the fire. Mr Ferguson then went back to sleep.
In the morning at about 9.00 a.m. you all woke up. More methylated spirits were consumed. Mr Benning asked you and Ms Taylor to get an ambulance for him. You got him some water and then you and Ms Taylor walked to the houseboats and asked that an ambulance be called for Mr Benning. This promptly was done. You and Ms Taylor then walked on into town.
The ambulance arrived at the riverbank and after some difficulty with the terrain, reached the campsite shortly before 11.00 a.m. Mr Benning was conscious but drowsy. He was lying down and there was what appeared to be one to one and a half litres of blood in the area of bedding around his head. He told the ambulance officers what had happened the night before. He was conveyed to the Mildura Base Hospital. Upon admission to that Hospital he was medically examined and he gave a history to the medical staff. There were three major scalp lacerations which were bleeding profusely. He was given substantial blood transfusion. The bleeding was not able to be stopped by bandaging, and accordingly Mr Benning was operated on under general anaesthetic to suture the lacerations. The procedure was successful, and the patient regained consciousness after the operation. He spoke to medical staff and was being transferred to a trolley when he suffered a cardiac arrest and died. His death was medically entirely unexpected. In fact it was caused by his blood loss from overnight at the campsite. Emergency resuscitation attempts were unsuccessful, and Mr Benning was pronounced dead at 6.03 p.m. on Monday, 16 April 2001.
Post-mortem examination of the deceased conducted in Melbourne on Tuesday, 17 April 2001, revealed that the cause of Mr Benning's death was acute pulmonary oedema. That was caused by Mr Benning's significant blood loss overnight at the campsite, and was contributed to by the cold conditions overnight and by his substantial ingestion of alcohol. Significantly for you, Mr Wilson, the autopsy also revealed two important things: one was that there was no fracture of the skull, and the other was that there was no cerebral spine or brain injury. With serious assaults to the head, one or both of these features is often present. In this case both features were absent. Their absence is significant in themselves and also confirms your police statement that you did not intend seriously to injure Mr Benning. However, Mr Wilson, any assault to the head with a stick is serious, particularly a repeated assault as you inflicted.
Legally, the crime of manslaughter here is constituted by your unlawful and dangerous act in assaulting the deceased to the head with a stick, which acts led ultimately to his death. Legally you are responsible for the result of your actions if, as here, your actions were a significant contributor to the death of the deceased.[1]
[1]Royall v R (1991) 172 CLR 378 per Brennan J (as then he was) at 398 citing R. v Pagett (1983) 76 Crim. App. Rep. 279 at 288, and McAuliffe and McAuliffe (1993) 70 Aust.Crim.Rep. 303.
Mr Benning was 34 years of age at the time of his death, having been born on 28 January 1967. His death has afflicted the lives of his loving family. I have regard closely to Exhibit A before me, the victim impact statement of the mother of the deceased, Mrs Judy Benning, made on 9 July 2002. As I said on Monday in hearing this matter, the statement of Mrs Benning is an moving and impressive document, and I take it centrally into account.
Mr Wilson, you were apprehended on the Monday afternoon walking near Seventh Street. You cooperated fully in police enquiries. You were interviewed on the Monday afternoon and charged with intentionally or recklessly causing serious injury to Mr Benning. When that evening Mr Benning died, the Homicide Squad was brought in. The next day you cooperated fully in their enquiries, including going back with them to the campsite, and showing them what happened. Because of the medical uncertainty at that time of the precise cause of the unexpected death of Mr Benning, the matter was referred to the Office of Public Prosecutions. Eventually, on 12 October 2001, six months later, you were charged with the murder of Mr Benning. You remained from the Monday 16 April 2001 until now in custody. At no stage have you applied for bail.
Mr Wilson, you were 31 years of age at the time of the offence, having been born on 24 October 1969. You are now 32 years of age. You are an indigenous Australian.
Mr Wilson, you have pleaded guilty to the manslaughter of Mr Benning and have always been prepared to plead guilty to it. You are remorseful for the crime you have committed and your plea of guilty, your preparedness so to plead and your cooperation with police enquiries including going back to the scene as shown on the video, all demonstrate your remorse for the crime that you committed to your friend. Whilst in custody you have shown significant application to your own reform. Importantly you have undertaken drug education in relation to your serious problem of alcohol abuse. At no stage have you abused any other drug, but you had a long and serious problem with alcohol abuse that I will come to in a moment, and you have responsibly commenced to address that whilst in custody. I have regard to a certificate of Moreland Hall of 27 June 2002 tendered before me, which shows that you have participated in the Koori drug education programme, and propose to continue to participate, this time in an intensive alcohol program, not just a generalist drug education program. That is highly relevant in your case, Mr Wilson, because it is alcohol that has brought you here before me.
You have also shown ability in education and whilst in custody have undertaken education training and employment training. Tendered before me are certifications from the Kangan Institution of TAFE of 1 July 2001 that you were enrolled in Certificate 1 in Koori education (reading and writing and oral communication). Your attendance was good, your progress was very good and you were a valued contributor to the course. Further, by a certificate undated but apparently of July of this year, you are enrolled in a Koori education training and employment course and in Koori art and design. You have indicated that you would like to continue with your education in the area of art so that you can give back to your community by working with some of the youth in your local area, producing art works and murals. In fact but for your alcoholism, you have shown quite some capacity in education and quite some capacity in art. You have achieved your High School Certificate while in earlier custody, in Bathurst, NSW. Unfortunately the High School Certificate you achieved there is marked as being obtained in gaol, a matter that I shall return to.
Mr Wilson, if you remain off alcohol you have a considerably good future ahead of you, because you have ability - ability to be educated and ability to help others in your favoured area of art. I think you have got quite a good future in that respect, Mr Wilson. You have quite a degree of capacity if you use it, as I hope you will.
Also tendered before me is a psychological report of Mr Ian Joblin of 4 July 2002 which records your history of alcohol abuse. It is characterised by Mr Joblin as "an appalling history of alcohol abuse". Indeed your counsel, Mr Backwell, has traced your history from the early days in Wilcannia, around the outback areas of New South Wales, and also interstate. Sadly it appears that from the age of 13 years onwards there were two constant features in your life: one was abuse of alcohol, and one was trouble with the law directly as a consequence of your abuse of alcohol. I am confident, Mr Wilson, that if you can reject alcohol you will not have further trouble with the law. That is the key to your future, just as on the negative side it has been the key to your past since you were 13 years of age. It is the key to why you are here today.
You have a number of prior convictions, but they do not demonstrate that you are a man of violence. I have said what I have said, Mr Wilson, about your conduct both towards Ms Taylor and of course your much worse conduct towards the deceased with the stick, to signify that the court rejects violence to people as an expression of anger, or as a solution to problems. The court rejects violence. But you do not have a significant history of violence. Your history really is one of non compliance with the law because of excessive drinking. I will come to the cause of that in a moment.
Turning to the principles of sentencing applicable to you, the first is this. You have caused the death of another human being. The right to life is the most fundamental of rights, and the court by its sentence must mark and reaffirm its commitment to the value of human life. As I have said, the impressive victim impact statement of the mother of the deceased is testament to the value and importance of every life, including the life of Mr Benning.
There are, however, a significant number of mitigating elements in this case, Mr Wilson, which substantially reduce the sentence which otherwise would be imposed upon you. First and importantly you did not take a weapon to the scene. Unlike a knife or a machete or other weapons which people carry around, you did not take a weapon to the scene, and that is most significant in manslaughter cases. Second, you did not intend to seriously harm the deceased, your friend. Third, you did not realise the extent of harm you had caused, nor did any of the others at the camp site overnight. For them, that lack of realisation was probably a combination of their consumption of alcohol and the fact that it was dark. For you, your lack of realisation derived from those two factors, plus your lack of intention to seriously harm and lack of expectation of serious harm. Next, in the morning when you partially realised the seriousness of the situation you caused an ambulance to be called. Next, the death of the deceased was medically entirely unexpected. Next, you cooperated with the police throughout their investigations both on the Monday and on the Tuesday. Next, you are genuinely remorseful for your crime. That is important in itself and is important as an indicator of your rehabilitation both now and for the future. Next, as part of that factor you have pleaded to manslaughter and have always been prepared to do so. Next, you were heavily affected by alcohol that night, thus causing you not to realise the seriousness of the situation. Next, you are not a man with a history of violence. Although you have some convictions for limited violence, the most serious of which was the conviction at Broken Hill on 25 July 1996 of assault occasioning actual bodily harm, the character and pattern of you prior convictions is not that of violence. Finally, you have suffered significant disadvantage throughout your life. You have suffered disenfranchisement and alienation which directly led to your alcoholism and which in turn directly led to the crime you committed on that night.
In that matter of your disenfranchisement leading to your alcoholism leading to your crime, I have had regard to a relevant and substantial body of material: Neal v R[2], per Brennan J (as then he was) at 326; Russell[3], per Kirby J at 391-392; Fernando[4], at 62-63 and the eight propositions there enunciated by Wood J; the Canadian equivalent of Fernando, Gladue v R[5]; R v Churchill[6], a Director's appeal in which at paragraph 26 the Court approved Fernando; R v Welsh[7], particularly at pp. 10-11; "The Sentencing of Aboriginal Offenders", J Nicholson SC (who was counsel in Fernando and Welsh)[8]; "Sentencing within a restorative justice paradigm", Judge M.E. Turpel-Lefond[9]; "Recent Developments in Canadian Criminal Law and Sentencing", Prof. G. Ferguson[10]; and "Alcohol-related social disorder and indigenous Australians: recent past and future directions" in Alcohol, Young Persons and Violence, P. Williams (ed.)[11]. Those authorities and those commentaries articulate the direct causal progression from disenfranchisement and alienation to alcoholism to crime.
[2](1982) 149 CLR 305.
[3](1995) 84 Aust. Crim. Rep. 386.
[4](1992) 76 Aust. Crim. Rep. 58.
[5](1999) 1 SCR 688.
[6](2000) WASCA 230 (unreported, 28 August 2000).
[7]Hidden J, NSWSC (unreported, 14 November 1997).
[8](1993) 23 Crim. Law Jour. 85.
[9](1999) 43 Crim. Law Quarterly 34.
[10](2001) 25 Crim. Law Journal 140 at 154-155.
[11]Canberra, 2001, at 145.
From the authorities I have cited there are two passages of special relevance and cogency in this case. Wood J in Fernando at pp. 62-63 stated as proposition E:
"While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social consequences faced by those communities where poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects."
And Hidden J in Welsh at p.10 stated the following:
"Only the most myopic in this community would deny that much of the contact of aboriginal people with criminal law can be traced to their dispossession and the breakdown of their culture. The high incidence of imprisonment of aboriginal people, and the often d eleterious and sometimes tragic effects it has on them, are of justifiable concern to the community ..."
His Honour, having cited Wood J's proposition E, continued at p.11:
"To that observation I would add the notorious fact (which I have observed in my own experience of aboriginal communities over the years) that many aborigines suffer from depression, often untreated and, indeed, undiagnosed. This is usually unsurprising, given the circumstances of these people and those close to them."
With respect, I agree with Wood J and with Hidden J.
It is necessary and appropriate in sentencing you, Mr Wilson, who have suffered that disenfranchisement and alienation, to take that direct causal pathway into account in reduction of sentence, because the Court always looks to causes as well as effects and it is that disenfranchisement and alienation which led to your drinking which led to the crime. Doubly so is it relevant to take it into account when you now demonstrate a preparedness and a willingness to give up alcohol. You are taking responsibility for your life and your future.
Mr Wilson, with your promise and determination I consider you have very good prospects for a worthwhile future upon release.
I recommend to the correctional service authorities that you be favourably considered for placement at Bendigo or Loddon, where you are nearer your traditional lands and would be able to continue your alcohol education. I also recommend to the NSW Education authorities that your High School Certificate be reissued with no reference on it to the fact of your then incarceration.
I take all the matters I have stated into account, particularly the importance of the right to life and the significance of the loss of a life unlawfully in this case, and also the matters that I have just set forth.
You have served, Mr Wilson, 465 days in pre- sentence detention to today. Pursuant to s.18(4) Sentencing Act 1991 I declare that period of 465 days as already served under the sentence I impose, and I so certify. That means, Mr Wilson, that that 465 days comes off the sentence that I impose upon you.
For the reasons I have stated, I consider that the proper sentence upon you comes at the lower end of the range of manslaughter.
Accordingly, for the manslaughter of Mr Darren Benning I sentence you, Mr Wilson, to four years' imprisonment. I direct that you serve a minimum term of two years' imprisonment before you are eligible for parole.
(Prisoner removed.)
Sine Die.
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