R v Andrew
[2008] VSC 138
•1 May 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1644 of 2008
| THE QUEEN |
| V |
| BRIAN ROBERT ANDREW |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2008 (Plea) | |
DATE OF SENTENCE: | 1 May 2008 | |
CASE MAY BE CITED AS: | R v Andrew | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 138 | |
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CRIMINAL LAW – Sentencing - Manslaughter – Plea of guilty – Domestic violence –
Offender’s failure to seek medical attention in time – Evidence of previous violent assaults on victim by offender - Victim vulnerable due to earlier brain injury
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Borg | Office of Public Prosecutions |
| For the Defendant | Mr W Stuart | Victoria Legal Aid |
HIS HONOUR:
Introduction
Brian Robert Andrew, you have pleaded guilty to killing Janine Brockie on 10 May 2007.
The maximum penalty for the crime of manslaughter pursuant to s.5 of the Crimes Act is 20 years’ imprisonment.
Your background
You were born on 3 September 1962 and are now 45 years of age. You are the youngest of six children and were educated at Heathdale Primary School, Verdale Primary School and then Mitcham Technical College. You left school at the age of 15 and worked until the age of 20 in the general motor vehicle industry; then working for 15 years with Ansett Ridgeways as a furniture removalist and continuing in that occupation with a number of other employers thereafter.
Your consumption of alcohol, which had commenced at the age of 15, affected your ability to participate in the workforce. By the time you entered your 40s, your alcohol consumption was such that both your lifestyle and your work capacity were significantly affected. From time to time you would seek assistance for your alcohol problem. By the time of this offence, you had been on unemployment benefits for at least 12 months and had applied for a disability pension. You were an alcoholic.
In addition to being addicted to alcohol, you had commenced using cannabis when you were about 18 years of age; this escalated in your 40s when you were using this drug daily.
You have never been married and your first relationship was with the deceased.
You have no prior convictions.
The deceased’s background
Janine Brockie was aged 42 at the time of her death.
Ms Brockie was a vulnerable woman with intellectual disabilities. She had a stroke at the age of 16 years. At age 20 she sustained serious head injuries in a motor vehicle accident which left her hospitalised for a lengthy period of time, subsequently requiring extensive rehabilitation. Her injuries included acquired brain injury, memory loss, double vision and restriction of movement. The pathologist noted the presence of a significant previous brain injury.
The deceased had two daughters who were placed into foster care and then adopted out. The deceased is described as a happy, friendly person who was trusting of others; however due to her disability she often lived in an unstable environment. She was unable to properly care for herself and relied on others to assist her. She also was an alcoholic.
You were aware of her intellectual and emotional disabilities.
The relationship between the prisoner and the deceased
You met the deceased at a local hotel in, as best as I can tell, 2003 and you then commenced to live together in Ringwood about six months after first meeting.
Both of you were alcoholics and spent a considerable amount of time at local hotels, as well as often smoking marijuana together.
Your relationship with the deceased in its later years was characterised by violence. There is a considerable body of evidence which demonstrates that for at least one year prior to her death you regularly assaulted the deceased to the extent that she was at times observed by others with apparent bruises on her legs and arms. Your friends, family and at least one medical practitioner all warned you that this behaviour was unacceptable. You knew that you were violent towards the deceased when you had been drinking. Although there were occasions when you promised to cease this behaviour, there is a clear thread of unremitting ongoing violence exhibited by you towards the deceased.
The surrounding circumstances
On the evening of 9 May 2007, you and the deceased visited a friend’s house in Ringwood. Each of you smoked a few joints of marijuana and consumed alcohol.
At about 10.00 p.m. you and the deceased determined to visit another friend. You were described by a witness as being “a bit stoned and pissed”. The deceased was “fine” as she had only had about one glass of liquor.
Shortly thereafter you together went to the home of Mr Dallas Hawes, a unit in Allen Street, Ringwood. You were described by Mr Hawes as being intoxicated when you arrived. You both drank a bottle of wine and drank further wine provided by Mr Hawes.
Initially the visit was friendly, but later, as you became more inebriated, you said to the deceased: “shut up bitch I am talking” and then accused her of seeing old boyfriends. You then violently assaulted the deceased. Mr Hawes describes your actions as follows:
“He punched her to the face with a clenched fist. I cannot recall which hand he used. Brian is a solid bloke and I would say it was a reasonably hard punch. Jeannine then fell off the stool. I think she landed on her side. She got up a couple of seconds later. They then commenced their normal argument. He was saying ‘You are trying to pick up old boyfriends’. I have seen them have this argument many times over the four or five years they have been together. Brian then hit her again with a fist to the face. She fell over to the floor again”.
Mr Hawes told you to “lay off we go out to have a good time not a hard time”, to which you responded “Fucking bitch or something like that”. You then kicked the deceased on the leg and then on her side whilst she was lying on the ground. Mr Hawes described these blows as “reasonably hard kicks”. He then said that “there was no one-on-one fighting at the time Janine did not strike Brian. It was just him hitting and kicking her”.
The deceased was crying and distraught. She “vomited clear liquid”. She then lay on two single mattresses in the room, crying and calling you a bastard.
At about 1.00 a.m. you woke the deceased and asked her to go home with you; she refused to go and stayed at Mr Hawes’ home. She did so because she was fearful of being assaulted again by you.
You took a taxi home and Mr Hawes kept drinking until he went to bed at 6.00 a.m.
It appears that you tried to ring Mr Hawes during the day to investigate the deceased’s condition. You made a number of unanswered calls to Mr Hawes.
You knew that you had struck and kicked the deceased on several occasions. You also knew that she had a swollen face and had been vomiting. You did not call an ambulance. You did not take her to hospital. You did not call a doctor. As I have stated, rather than attending Mr Hawes’ house to check on the deceased’s welfare, you made desultory and feeble attempts to contact Mr Hawes who was patently unreliable.
During the day of the 10th, Mr Hawes did nothing to check on the deceased’s condition. He says that he thought he had heard her snoring, but when he awoke that evening he was concerned as she seemed not to have moved from her position when he went to bed. At about 8 pm you rang and discussed with Mr Hawes the deceased’s welfare. You suggested that Mr Hawes go and touch her hand to see if she was cold. He did this and realised that her hand felt “chilly”. You suggested that he call 000, which he did. You then went to Mr Hawes’ house. When you arrived, the ambulance officers informed you and Mr Hawes that the deceased was dead.
An autopsy was conducted on 11 May 2007 at 10.00 a.m. The cause of death is described as an intracranial haemorrhage (acute subdural haematoma) which occurred as a consequence of blunt head trauma.
Relevant autopsy findings included multiple bruises on face, scalp, upper and lower limbs, chest and back with early inflammatory changes suggesting most occurred some hours before death; intramuscular bruising involving right sternomastoid, right masseter, right cricothyroid and left trapezius; left sided acute subdural haematoma; and acute subarachnoid haemorrhage involving the cerebellum and both frontal lobes.
The opinion of Dr Lynch, the pathologist is that the subdural haematoma is reflective of a significant head injury and could not occur as the result of minor trauma outside the extremes of age. On a scale of mild/moderate/severe, the pathologist’s view is that the requisite degree of force should be classed as at least moderate.
In your record of interview conducted on 10 and 11 May 2007, you said as follows:
“I didn’t like what she was saying or something and I, you know, asked her to quieten down or somethin’ – something and she wouldn’t quieten down and she was talkin’ rubbish and I think I slapped her and then she said a few more words, I think, and then I think I give (sic) her a high kick and fell over myself at the same time, I think … Just got her to the bed … and she was – she was sort of breathing. She was – you know, she was breathing alright. So me and Dallas had another drink or so. She was alright. So I said to Dallas ‘alright, I’m gonna go home’”.
When the statement of Mr Hawes was put to you in which he said that the kicks were reasonably hard, you said: “To two little people like them, I suppose yeah”.
Later in the interview you gave more detail of the incident and said:
“I’m pretty sure I asked her to shut up a couple of times and … she kept goin’ and so I give her a bit of a slap and she kept goin’ on bloody, you know, ‘you bastard’ or something’, so I’ve got up and bloody let my right foot come up, scraped her face and I … I fell over at the same time myself and she’s sort of gone back onto the bed”.
You told the police that there were two kicks and two punches involved in the assault, that the deceased was crying and distraught and that she vomited liquid or regurgitated liquid vomit shortly after the assault. You also agreed that the deceased was too frightened to go home with you and that is why she chose to stay at Mr Hawes’ premises.
You said to the police that you knew that the deceased was injured but did not call a doctor or an ambulance at the time, it was only the next day, despite thinking the worst – namely that she would not be all right – that you prompted Mr Hawes to call 000.
Evidence on the plea
Reports from Mr Jeffrey Cummins, psychologist and Dr Danny Sullivan, psychiatrist were tendered. Your histories to them show that you are remorseful for causing the death of the deceased. Neither specialist could identify any cognitive impairment or psychiatric disturbance which could account for your actions.
Your sisters, Mrs Ballingdale and Mrs Shaw told me that they had never seen you act violently towards the deceased and were shocked when prior to this event they heard that you were behaving violently towards her. They also gave evidence as to your remorse. Each is prepared to assist in your rehabilitation once you are released from prison. You have told them that you will not touch alcohol again.
I turn now to the considerations which are relevant to the determination of an appropriate sentence.
Sentencing considerations
The circumstances surrounding this offence make it a serious case of homicide. I accept that given the Crown’s acquiescence to your plea to an unlawful and dangerous act manslaughter that you did not intend to inflict really serious injury upon the deceased.
Nevertheless your actions in violently assaulting a defenceless, susceptible, woman on several occasions and then leaving her in a parlous state to die, without any further proper inquiry as to her welfare, deserves public condemnation and just punishment.
You well knew that she was a vulnerable woman who had a significant degree of dependence upon you. You also knew that for a considerable time prior to her death when fuelled by alcohol you behaved in a violent and unacceptable manner towards her. Despite this knowledge, you attacked her violently again at Mr Hawes’ house.
It is simply no excuse to explain your actions by reference to your consumption of alcohol.
Your culpability and responsibility is at a high level for this type of crime. The deceased, as I have said, was particularly vulnerable. For no apparent reason other than being fuelled by the consumption of alcohol, you struck and kicked her. What is also reprehensible about your behaviour is your failure over the next 18 hours to make any genuine attempt to ascertain her state of health, particularly when you had inflicted the blows and were necessarily aware of her physical condition. The photographs of the deceased show a woman who had been subjected to a violent assault – but you did practically nothing to assist after inflicting these blows.
A Victim Impact Statement from the deceased’s daughter, Tricia Cox and her aunt Margaret Brockie, have been tendered. Each loved the deceased very much and has been significantly distressed by her death.
Mitigatory considerations
There are, however, a number of matters which are in your favour and must be taken into account.
You have no prior convictions and were previously of good character.
You have admitted freely from the time you were first interviewed by police that you assaulted the deceased and were responsible for her death.
You have shown true remorse for your actions. This is evident from your record of interview, the evidence of your sisters and your letters to the deceased’s family and the Court tendered in evidence.
Your sisters and your general practitioner, Dr Kavanagh, say that your violent behaviour towards the deceased, predating her death, was out of character.
Your plea of guilty means that the community has been saved the expense of a trial and that the deceased’s family have avoided that ordeal.
Your completion (whilst in prison) of a number of courses dealing with alcohol and drug abuse bodes well for your rehabilitation when released from prison. Similarly your completion of several TAFE courses, hopefully, will assist in rehabilitation. Your sisters have said that they will stand by you both in and out of prison.
I accept that if your addictions can be cured then there is a reasonable prospect of rehabilitation.
Conclusion
You took the life of your partner in circumstances for which you bear a high degree of culpability and responsibility.
For the reasons which I have given, I regard your offence as a serious case of unlawful and dangerous act manslaughter. The aggravating circumstances which I have referred to must be taken into account.
The sentence to be imposed upon you, therefore, must express the denunciation of the community as well as providing adequate general and specific deterrence. Your crime demands just and proportionate punishment. As against that, I am bound to give proper weight to the mitigatory considerations to which I have referred, including your plea of guilty, your good previous character and your undoubted contrition and remorse.
I have also kept in mind current sentencing practices for this offence.
Sentence
Brian Robert Andrew, you have pleaded guilty to the manslaughter of Janine Brockie, of which I now convict you.
I sentence you for that offence to a term of imprisonment of ten years and set a non-parole period of seven years commencing this day.
I declare that the period to be reckoned as already served under the sentence I have imposed on you is 358 days inclusive of today’s date and I direct that there be noted in the Court’s records the fact that the declaration has been made and its details.
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