R v Allan
[2019] VSC 18
•31 January 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WANGARATTA
CRIMINAL DIVISION
S CR 2018 0095
| THE QUEEN | |
| v | |
| JACOB THOMAS ALLAN | Accused |
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JUDGE: | Lasry J | |
WHERE HELD: | Wangaratta | |
DATES OF HEARING: | 30 January 2019 | |
DATE OF SENTENCE: | 31 January 2019 | |
CASE MAY BE CITED AS: | R v Allan | |
MEDIUM NEUTRAL CITATION: | [2019] VSC 18 | |
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CRIMINAL LAW – Sentence following plea – Manslaughter by unlawful and dangerous act – Altercation in street – Accused punched deceased to the face, causing deceased to fall a second time – Accused kicked motionless deceased to the upper body and stomped on deceased’s head more than once, and multiple times again later while unconscious – Accused injured in further altercation with others – Objective gravity of offence severe in particularly vicious attack – Prior convictions – Graduation of offending to extreme violence – Offending whilst on community correction order – Some, but not overwhelmingly strong, remorse – Weight to general and specific deterrence, denunciation, and protection of the community – Prospects of rehabilitation possible, but limited – Plea of guilty, albeit late – Sentence of ten years’ imprisonment with non-parole period of seven years – But for plea of guilty, sentence of twelve years’ imprisonment with non-parole period of nine years – Sentencing Act 1991 (Vic) ss 5, 6, 6AAA, 18; Crimes Act 1958 (Vic) s 5.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. Doyle with Mr G. Hayward | Office of Public Prosecutions |
| For the Accused | Mr R. Nathwani | Haines + Polites |
HIS HONOUR:
Overview
Jacob Thomas Allan, on 21 January 2019 in this Court in Melbourne, you pleaded guilty to the manslaughter of Russell Craig Berry. The maximum penalty for manslaughter is 20 years imprisonment.
On 30 January 2019, in Wangaratta, you were once more arraigned on the charge of manslaughter and you again pleaded guilty to that charge. That arraignment occurred so that family and friends of the deceased man and the people from the Wangaratta area who wished to do so could witness the procedure. This Court had previously ordered that your trial be heard in Wangaratta.
On 30 January 2019, I heard the prosecutor open the case. I then heard submissions on your behalf and on behalf of the Director of Public Prosecutions as to the sentence that should be imposed on you. It is now my responsibility to sentence you for that offence.
The charge of manslaughter that you have pleaded guilty to is manslaughter by unlawful and dangerous act.
Circumstances of offending
It is first necessary to outline briefly the circumstances of your offending and what occurred during the incident leading to Mr Berry’s death.
The incident that resulted in Mr Berry’s death occurred during an altercation in the early hours of 20 May 2017 near premises at Unit 1, 12 White Street, Wangaratta. That address was the home of James Ferguson, who was a friend of the deceased man and witness to what occurred, particularly in relation to your actions in attacking the deceased man during the incident. Mr Ferguson was an important prosecution witness.
There were a number of men present when the altercation occurred. At the time of his death, Mr Berry was 41 years of age. Though you both lived in the Wangaratta area, you and he were not known to each other.
Earlier, on the night of 19 May 2017, the deceased was with Nino Porpora and Paul Kerr, and they had been drinking at Mr Kerr’s premises in Wills Street. Mr Porpora wanted to get some medication from his home in Higgins Street and he left for that purpose. The deceased man and Mr Kerr left with him. They walked along White Street and Mr Kerr and the deceased went to James Ferguson’s place. There was a conversation with Mr Ferguson, who was at home with Jarred Dowdle and Terry O’Loughlin. At one stage, the deceased called out to Mr Porpora by his nickname “Boo Boo”.
Having been at a hotel nearby drinking with your cousin, Chris Meaney, at this stage, the two of you were also in White Street and, on hearing the deceased call to Mr Porpora, Mr Meaney responded verbally aggressively.
After that verbal altercation, the first display of violence toward the deceased was by Mr Meaney, who approached him and then struck him with a bag, causing him to fall to the ground. It is unclear what was in the bag and whether that incident caused injury.
At about this stage, Mr Kerr approached Mr Meaney with two machetes and swung them at him.
The deceased got up and approached you for an explanation as to why he had been struck by Mr Meaney. You responded by punching him to the face and he again fell to the road, landing on his back. It was put on your behalf that that first blow was struck by you in lawful self-defence, though it was conceded that everything that happened thereafter was not. It is sufficient for me to say that there is considerable doubt about that proposition and I do not accept it, though I do accept the spontaneity of what followed.
Once on the ground again, the deceased did not move thereafter. You then kicked the deceased to the upper body and head, and “stomped” on his head more than once.
You then approached Messrs Meaney and Kerr and there was an altercation during which you were injured to the head, lower left leg and chest. Mr Meaney was also injured. You and Mr Meaney also assaulted Mr Porpora, who, having heard the incident, returned to the scene and was left unconscious as a result. I mention that only as part of the narrative. I emphasise there is no offence in the indictment concerning that incident and so it will not form any part of the basis of the sentence I will shortly impose on you.
You then returned to where the deceased man was lying on his back in the middle of the road. You then stomped on his head again more than once and kicked him to the ribs. I have examined the photographs of the deceased man which reveal the very significant injuries he suffered to his head and face.
In brief summary, the prosecution case against you was that your act of stomping on the face of the deceased caused his death. It is now accepted by the prosecution that you did not have an intention to kill Mr Berry or cause him really serious injury.
The witness Ferguson had tried to persuade you to stop attacking the deceased. He was chased back into his unit – windows of which were smashed. During this time, a neighbour in White Street who recognised your cousin’s voice called the police.
After the incident, and once you had left, another witness went onto White Street and observed the deceased lying on the road and bleeding profusely from the head. As a result of phone calls made to 000, police and ambulance services attended the scene.
The deceased went first to the Wangaratta Base Hospital and later to the Royal Melbourne Hospital. He died on 25 May 2017 and the post-mortem carried out the following day revealed multiple blunt force injuries to his head that were connected with the cause of death.
Police investigation
Later on 20 May 2017, you spoke to police at the Wangaratta Police Station. You gave some account of what occurred and, whilst you admitted you might have punched the deceased, you effectively denied that you had stomped on his head. You said you might have kicked him, but would not have stomped on him. Your final position in a later interview the following day was that you kicked the deceased in the ribs, but did not stomp on him.
You were interviewed again on 21 May 2017 and, during that interview, when it was put to you, you denied stomping on the deceased.
On 22 May 2017, whilst in custody in the police cells, you made a number of admissions to others in the cells who were undercover police operatives. Those admissions included stating that you “jumped all over their heads”, that you knocked a man out, and that you were “…jumping on his head about four or five times”. You made other similar references to “kicking and booting him straight to the face”.
The prosecution submit, and you accept by your plea, that your conduct was a substantial and operating cause of the death of the deceased.
Though it is true that this was not a planned incident and there was no weapon involved as far as you were concerned, this is yet another example of mindless street violence started for no real reason. You had opportunities to diffuse the situation, but you chose not to take them. Spontaneous though it may have been, your conduct in causing the death of the deceased occurred when he was on the ground and unconscious. Though it occurred in the context of a fight involving others, your conduct was not only fatal to the deceased man, but also cowardly. To kick an unconscious man to the head, not once but twice, is extremely serious conduct. Sentencing considerations of specific and general deterrence are significant in this case.
Victim impact statements
During the plea proceedings, I received three victim impact statements and they are from the deceased’s mother Jeanette Berry, his father Edward Berry, and his friend James Ferguson. Each of these statements highlight the long-term consequences of what you have done. Like you, they will have to live with the memory and permanent impact of this futile loss of life.
I have considered these statements in determining the sentence that I should impose on you.
Personal circumstances
It was put on your behalf that you are now a significantly different person from the person you were when you committed this offence. Your counsel submitted that you are remorseful and that your time in custody so far has had a substantial effect on you.
You were born on 15 December 1993 and are therefore now 25 years of age. You were born in the Wangaratta area. You presently have a supportive family. Your education finished in Year 10 and you have held various jobs in various forms of labour, including bricklaying and tree cutting. I have been provided with three references from people who have known you for a long time from the local area and who attest to your good qualities.
In February 2013, you had been at a hotel drinking and, in the early hours of the morning, you were attacked by a car being driven at you and then attacked by the occupants of that vehicle. You suffered injuries as a result.
I am told that on two occasions, friends of yours have taken their own lives and that those incidents have both had a significant effect on you.
You are still young and have much of your life in front of you, though I am guarded about your prospects.
You have admitted a prior criminal history that can be summarised as follows. Your history began in February 2014 when you were 20 years old with a charge of affray for which you received a community correction order that you later breached. Eight months later, it was criminal damage and throwing a missile. In November 2015, there was another charge of affray and another community correction order that you once more breached. The offences that breached that order were recklessly causing injury, affray, unlawful assault, intentionally damaging property and possessing a dangerous article in public. You were yet again sentenced to a community correction order on 3 August 2016 and that order was still current when you committed these offences.
Clearly, you had learnt nothing from any of these various court appearances nor from the opportunities that were afforded you. In the offence to which you have now pleaded guilty, you have graduated to actions of extreme violence that were fatal.
On the other hand, your time in custody has been difficult. During this time, you were diagnosed with, and treated for, Burkitt lymphoma, which is a potentially fatal cancer starting in the immunity cells. I am told you were treated for this illness with chemotherapy for six months and that, in January 2018, the illness was in remission. You will continue to be monitored for five years before you are considered free of the disease.
Rehabilitation and remorse
Your counsel argued that your prospects of rehabilitation are good because your time in custody has been a significant lesson for you and that you have changed and matured in that time. I am told that you are determined that, once released, you will not return to custody. In addition, the record seems to show that, in custody, you have endeavoured to occupy yourself with worthwhile activities, including in the kitchen and laundry.
It was argued on your behalf that these matters demonstrate that you are motivated to change your life and obey the law on your eventual release.
It was also argued that you have shown remorse for what you did through your plea of guilty and in response to police questioning in the record of interview when you were made aware that Mr Berry was unlikely to survive.
I am willing to accept that there is some remorse in your response to what has occurred, though I do not regard it as an overwhelmingly strong response. When it came to an acceptance that you committed the acts of kicking and stomping that caused the death of the deceased, that seemed to take a considerable time to occur. In addition, your expression of concern for the deceased in the record of interview was, as the prosecutor pointed out, coupled with denials that you committed the fatal acts.
Other sentencing considerations
In the course of his submissions, the prosecutor has pointed to specific and general deterrence as being significant considerations in sentencing you. What that means is that you have to be sentenced in a way that deters you and others in the community from committing the kind of extreme violence that you engaged in.
It is also appropriate that this Court denounce your conduct and punish you for it. It was conduct that was extremely violent and totally unacceptable.
In addition, to the extent that it is necessary, and it is, the community is entitled to be protected from you and the kind of conduct you engaged in which caused the death of Mr Berry.
Given your record and the circumstances of your offending, I must regard your prospects of rehabilitation as possible, but limited. At the time of committing this very serious offence, you had completed nine months of a twelve-month community correction order. That order included conditions concerning your supervision and alcohol and drug abuse.
Additionally, as I have already said, I take into account the impact of your conduct in causing the death of Mr Berry on his family and friends as described in the victim impact statements.
Plea of guilty
Initially, you were charged with the murder of Mr Berry and a trial on that basis was to commence on 30 January 2019. Instead, however, you pleaded guilty to manslaughter, as I said, on 21 January 2019. On any view, that was a late plea, though I am told that that offer had been made some time earlier when the matter was before the Court on the issue of the venue for the trial.
The matter had been before the Court several times and time had been put aside in Wangaratta for a three-week trial. Nonetheless, a trial has been avoided and there is a significant benefit for the community and the friends and family of the deceased in not having to endure a trial. I am required to quantify the discount that you will receive for your plea of guilty and I will shortly do so. I acknowledge that your plea of guilty does represent an acceptance of responsibility by you for what you have done.
Conclusion
In considering the nature and gravity of the offence, as I have already said, this was a particularly vicious attack, carried out twice, on a man who was already on the ground and, at least on the second occasion, unconscious. Your behaviour had terrible consequences, including for you.
You are sentenced to be imprisoned for a period of ten years. I fix a period of seven years that you must serve before you become eligible to make an application for release on parole.
For the purpose of s 18 of the Sentencing Act 1991 (Vic), I declare that your pre-sentence detention, including today, is 622 days and that that period is reckoned as time you have already served. I direct that be entered in the records of the Court.
Pursuant to s 6AAA of the Sentencing Act, I also declare that had you not pleaded guilty to this charge and had been found guilty, not of murder but of manslaughter, I would have sentenced you to a period of twelve years imprisonment. I would have fixed a non-parole period of nine years.
I have already made the disposal orders requested by the prosecutor and that are not opposed by you.
Remove the prisoner.
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