R v Ashton
[2004] VSC 464
•17 November 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1452 of 2004
| THE QUEEN |
| v |
| MARK ANDREW ASHTON |
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JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 September 2004 | |
DATE OF SENTENCE: | 17 November 2004 | |
CASE MAY BE CITED AS: | R v Ashton | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 464 | |
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CRIMINAL LAW – Sentence – Manslaughter by dangerous and unlawful act – Plea of guilty – Death of deceased caused by aspiration of gastric content whilst held around the neck – Both accused and victim highly intoxicated - Remorse – Sentence of seven years’ imprisonment with minimum of five years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr W. Morgon-Payler Q.C. | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A. Shwartz | Victoria Legal Aid |
HIS HONOUR:
You, Mark Andrew Ashton, have pleaded guilty before me to one count of manslaughter. The maximum penalty for the crime of manslaughter is 20 years’ imprisonment.
This crime arises out of an incident which took place at the Caravan Court caravan park in Springvale South on 31 August 2003. Your victim, David Gribbon, was a man who was 50 years of age at that time. He lived alone in a caravan that he owned in the caravan park. Some years earlier he had received serious head injuries in an assault. Those injuries incapacitated him. He was unable to work and it would appear that by reason of his incapacity and his excessive abuse of alcohol he separated from his wife and his family in January 2002. However, notwithstanding the fact that he was an excessive drinker, the materials before me indicate that he lived quietly and without incident at the caravan park.
You and David Gribbon were friends, notwithstanding the fact that he was some 16 years older than you. Indeed, for a period of time and during the month of July of 2002, until you were able to rent a van of your own at the caravan park, you shared Mr Gribbon’s caravan. It is apparent that you shared with him an interest in the consumption of substantial amounts of alcohol. The evidence before me is that you and Mr Gribbon got on well and that up until 31 August 2003 no apparent animosity was observed to exist between you.
In the afternoon of Sunday 31 August 2003 you and David Gribbon were together at the van of a mutual friend in the caravan park. It is apparent that both you and David Gribbon had been drinking heavily during the day. A discussion between the pair of you developed into an argument. The argument appears to have related to payment for past telephone bills. Mr Gribbon had a telephone connected to his van but you did not. You had on occasion, however, used his telephone. On the other hand, you asserted that you had on a number of occasions provided your friend David Gribbon with tobacco. You were heard by witnesses to swear at him and assert that you owed him nothing. David Gribbon, at some point in this argument, suggested that you and he discuss the matter in the morning when you were more sober. However, soon thereafter you placed your arm around the neck of David Gribbon, placing him in a headlock. You repeated this on several occasions. However, on each occasion, you either desisted or you were persuaded to desist from holding Mr Gribbon in a headlock by those who were present. There is no suggestion that he fought back in any way, although it would appear that there was pushing and shoving between the two of you.
You were then observed to get up and leave the van in which you were then situated and go to your own caravan where you got a knife and placed it in your rear pocket. You were followed by a witness who tried, without success, to persuade you to remain at your own van. He was equally unsuccessful in attempting to persuade you to leave the knife behind. You returned to the van where David Gribbon was situated and again placed him in a headlock. There is no suggestion that you attempted to use the knife, but at this stage one of the witnesses removed the knife from your pocket and threw it away. At the time that you placed David Gribbon in a headlock you were both seated upon a couch. The witnesses who were present give varied accounts of what took place which may well reflect their own intoxication at the time. However, it is apparent that you continued to hold David Gribbon in a headlock until such stage as you were persuaded by those who were present to desist.
Upon your letting go of David Gribbon he was found to be unconscious. The pathologist who conducted the autopsy concluded that the cause of death was “the aspiration of gastric content in a man exhibiting the stigmata of manual neck compression”. The pathologist, at the committal hearing, agreed that the injuries observed to be on your victim’s neck might have been caused by force that was “somewhere between light and moderate”.
Analysis revealed that David Gribbon had a blood alcohol content of 0.43 grams per 100 millilitres in the vitreous humour and 0.35 grams per 100 millilitres of alcohol in his blood.
You were not the subject of any blood alcohol testing but the evidence is clear that on the day in question you too had consumed a considerable quantity of alcohol and that you were significantly affected by such consumption. Subsequently you were interviewed by police and you gave an account of holding Mr Gribbon in a headlock in an endeavour to prevent him from striking you. Indeed, you claimed to police that Mr Gribbon threw punches at you and struck you on a couple of occasions. There is no support from any of the other witnesses for this proposition, although there is some support for the fact that both you and he were exchanging oral threats during the time that you were holding him.
You told police that you did not mean to choke your victim. You said, “I didn’t mean to because I got carried away, but I didn’t realise, what – what I done and I called the ambulance and the police.” You indeed did call both the ambulance and the police and there is evidence that you endeavoured to assist your victim after the altercation took place.
The prosecution relies upon manslaughter, by way of unlawful and dangerous act, in that you assaulted Mr Gribbon by holding him in a forceful headlock for a sufficient period of time to cause him to vomit and subsequently die from aspiration.
I have read the victim impact statements which have been filed with the court by the estranged wife of the deceased, Patricia Gribbon, by his sons, Daniel and Travis Gribbon, and by two of his sisters, Pamela Gower and Rhonda Fuller. Notwithstanding the estrangement, your victim’s wife continued to have close bonds with him and she has suffered greatly by reason of his death and the manner of it. Both of your victim’s sons have suffered grievous loss by the death of their father. Your victim’s two sisters have described their pain and grief at the loss of a gentle and much loved brother and the difficulty they have in coming to terms with his loss and the way in which he died. In particular, one sister, Rhonda, saw more of him after his separation and did much, she states, to assist him during his debilitated last years. Your criminal conduct is responsible for the death of a person who, notwithstanding his difficulties in life, was regarded by those who knew him as a decent and gentle man. Those who loved him will continue to suffer for the foreseeable future and possibly for the rest of their lives.
Nevertheless, as has been pointed out by your counsel, there are some mitigating factors. You have pleaded guilty and you are entitled as a matter of law to have that fact taken into account in your favour and in reduction of penalty and I do so. The community has, by your plea, been spared the time and cost of a trial and, of more significance, in my opinion, the witnesses and family of your victim have been spared the unhappiness and embarrassment of a trial taking place in this proceeding. Furthermore, I take into account that you have been prepared to plead guilty to the charge of manslaughter from an early time and that it was not until after the committal hearing that the prosecution elected to accept such plea.
I accept in your case that your plea is reflective of genuine remorse for your actions and the loss of your friend.
I have been told something of your personal history and your circumstances. You were born on 7 March 1969 and you are now aged 35 years. You were brought up in the Springvale area and come from a close, hard working family. Both your mother and your father attended at court upon the hearing of your plea. You did not enjoy school and by the age of 14 you left and took up employment as a trainee welder for a period of time, and then worked in the manufacture of tarpaulins and as a press operator. It would appear that at that time you had earned the respect of the persons who conducted that business. However, in 1986, at the age of 17, you were involved in a motorcycle accident which resulted in the first of your prior convictions.
Those first convictions involved causing serious injury negligently and carrying a pillion passenger on a motor cycle whilst unlicensed, as well as riding a motor cycle whilst unlicensed. Your counsel informed me that you in fact had two passengers, were intoxicated and were on the wrong side of the road and ran into a vehicle which had come through a red light. An issue arose in the course of your plea hearing before me as to whether a subsequent conviction on 27 April 1988, of causing serious injury negligently, was separate from the matters which were dealt with at the Magistrates’ Court at Frankston on 2 December 1986.
Subsequent to your plea hearing, investigations were conducted by the Office of Public Prosecutions into the true circumstances of the further convictions of two counts of negligently causing serious injury which appear on the further presentment. The Office of Public Prosecutions confirmed by letter addressed to my Associate dated 5 October 2004 that the convictions of negligently causing serious injury appearing on the further presentment for which you were convicted on 27 April 1988 were the result of an appeal in relation to the earlier convictions appearing on the further presentment. These are said to have taken place at the Magistrates' Court at Frankston on 2 December 1986. Immediately before I handed down sentence in this matter the prosecution sought leave to amend the further presentment to reflect the true facts. Accordingly, the position in relation to your prior convictions is that although you have prior convictions, they are of no relevance whatsoever in terms of any suggestion of violence in your past. The convictions of causing serious injury negligently relate to the negligent operation by you of a motor cycle. However, the other convictions of being drunk in a public place in October 1999 and of driving a motor vehicle whilst having a blood alcohol concentration exceeding .05 of which you were convicted at the Magistrates' Court at Dandenong on 17 October 2002, do reflect the difficulty that you have had with alcohol over a considerable number of years.
You were aged 20 at the time that you were convicted of being drunk in a public place and you were aged 33 when further convicted of the .05 offence. Your counsel, Mr Schwarz, informed me that on that occasion your reading was .29% BAC. As I said, these matters are not relevant in terms of violence but they do demonstrate that you have had difficulties with alcohol.
To return to your work history, you continued to work as a metal press operator at Mawfil Products after your motorcycle accident until 1994 and achieved the position there as assistant manager. You left because the business commenced to fail. Thereafter you worked on a casual basis as a rubbish removalist, maintenance operator, and at a nursing home for a period. During this period and up until approximately 2000, you engaged in itinerant work, living at different places, usually boarding, and if not boarding, renting. You spent any spare money you had on alcohol. In 2000 you obtained work with Glendale Engineering in a welding position and worked regularly for a period but worked more intermittently in the later period of your employment. However, you continued to drink and it would appear that your work became less regular as your drinking became more so.
Notwithstanding this, shortly before your plea the managing director of Glendale Engineering provided a reference dated 24 September 2004 noting that you were hard working and reliable and that you were a happy and friendly work colleague. I am informed that he is prepared to consider re-employing you after your prison sentence.
A work colleague, Mr Gath, has provided a similar character reference.
Tendered before me was a report prepared by Mr Ian Joblin who examined you at Port Phillip Prison on 12 May 2004. He obtained a detailed history from you. It comes as no surprise that he regards you as being appropriately diagnosed as an alcoholic. As stated above, you worked as a trainee welder, a manufacturer of tarpaulins and as a press operator at various times throughout your life. Over the last ten years, you have, as stated above, engaged in intermittent work. In relation to this work history you told Mr Joblin that you preferred drinking to working. You have lived a transient existence, moving between caravan parks in the Chelsea/Bonbeach area. You have lived on your own, having had no serious relationship with any person. Your friendships tend to be with persons who drink and attend hotels. You have few interests apart from drinking and frequenting the environment of hotels. You told Mr Joblin that before your imprisonment on remand you commonly drink all day, commencing when you get out of bed in the morning. You have had no professional attention for alcohol abuse. You expressed genuine remorse to Mr Joblin. You told him that your victim was “a good bloke”. You told him that you had no significant problems with him and that you considered him to be a drinking mate. You were emphatic in telling Mr Joblin that you never meant to kill your victim and that you were most unhappy that he is now dead.
Mr Joblin noted that since you have been in custody you have become fit and well and you presented without any sign of significant psychological problems. In particular, and somewhat surprisingly to Mr Joblin, his assessment of you did not reveal that you had any cognitive impairment as a result of your consumption of alcohol over many years. Furthermore, he considers that your judgement at the time of your conduct which led to the death of your victim was considerably impaired by the significant amount of alcohol consumed by you.
Your counsel informed me that since your apprehension you have taken steps to reform yourself. By reason of your present circumstances your dependence on alcohol has now ceased. You have problems sleeping at night, afflicted as you are, by your conscience by reason of the death of the deceased.
I heard evidence on your behalf. Your father gave evidence upon your plea. He confirms that he saw you and the deceased at the caravan park when you were living together and you appeared to be the “best of mates”. He gave evidence that he saw you at the Remand Centre soon after the incident and that you were in a state of shock and had, on several occasions whilst in custody, expressed remorse for the death of your friend, expressed your apologies for what had occurred and that you had stated you wished you could speak to your victim’s parents and apologise to them.
In addition, Donna Stewart gave evidence on your behalf. She has known you since approximately 1991, and on several occasions has provided you with accommodation in a caravan situated upon her premises. She had never observed you to be physically violent and regarded you as a generous person who would “give your last $2 to somebody that needed it.” Indeed, she attended at the caravan park on 31 August 2003 where she saw you. She observed that you were drinking Fruity Lexia out of a cask in the mid afternoon of that day. She has seen you in custody and you have expressed your sorrow about these events to her.
The events which led to the death of your friend are yet another example of the tragedy that alcohol creates in our community. I have no doubt that both of you were highly intoxicated on the day in question. You and he had had a companionship which, regrettably, had as its foundation the joint consumption of alcohol. From time to time, and no doubt by reason of the consumption of alcohol, you and he would argue about petty matters. He held a perhaps obsessive view that you owed him approximately $40 for phone calls. You, on the other hand, held the view that any money that you owed him for telephone calls had been well and truly set off by amounts of tobacco which you had provided to him. I accept that were it not for the blight the consumption of alcohol has brought upon your life you would never have come before the courts charged with a serious offence. I accept that notwithstanding your alcohol addiction over many years, you have at various times in your life maintained a work ethic. I accept that you are deeply remorseful for what has happened and in particular for the fact that a person whom you regarded as your friend has lost his life by reason of the unlawful and dangerous act in which you engaged.
I accept that your rehabilitation has commenced. You have a regular job within the kitchen of the prison at which you are presently detained. You have not been involved in prison trouble, nor have you had any involvement with illicit drugs in prison. The opportunity to consume alcohol is, of course, highly restricted in prison but you appear to have improved in health with the absence of alcohol. It is apparent that the key to your not being engaged in criminal violence or other antisocial behaviour in the future, lies in your recognition that you are an alcoholic and with that recognition, the capacity to, abstain from the consumption of alcohol. It is apparent that you should undertake such programs as are available in relation to addiction to alcohol and anger management whilst you are in prison and that there should be a parole period sufficient to ensure that you are supervised in this regard and that you continue to undertake programs related to your alcoholism whilst you are undergoing a period of supervised release.
As I have said, I am informed that the employer who employed you subsequent to 2000 is prepared to re‑employ you if and when you are free, if he is still in business. Ms Stewart, who gave evidence before me, is prepared to encourage your reformation when you are released in due course. Both of your parents are alive and are prepared to support you, particularly if you abandon the abuse of alcohol.
Special deterrence is a matter of some significance in terms of the sentencing task before me. Notwithstanding your remorse, which I accept is real and genuine, you must understand that a return to alcohol with the risk that it entails for the community must be deterred.
In addition to matters personal to you, such as the matter of rehabilitation and the issue of special deterrence to which I have referred above, I am required by the Sentencing Act to take into account other matters. In particular, in your case, the issue of general deterrence does present itself as being significant. Regrettably, alcohol fuelled violence in our community is all too common. Disputes between intoxicated people whose judgement is impaired by the consumption of alcohol so often end up with the death or serious injury of one or other of the participants.
In the case before me, a man, who apart from sharing his affliction for the consumption of excessive amounts of alcohol with you was a decent, quiet and inoffensive man has met his death. As the victim impact statements clearly demonstrate, his relatives are left to grieve his loss in anger and bewilderment at the manner in which he met his death. It is indeed bewildering to any sober and sensible person as to how such a minor and petty event as a few dollars allegedly owed about telephone calls can result in the death of a member of our community. However, as I have said, regrettably, such events are not uncommon and general deterrence is a matter of relevance.
I must also express the community concern and its denunciation of your behaviour which is responsible for the loss of life. Just punishment must be imposed in all the circumstances.
The crime of manslaughter occurs in many and varied circumstances. Occasionally, deaths occur in split seconds by reason of an unlawful and dangerous act. In your particular case, and notwithstanding the substantial mitigatory matters which have been advanced on your behalf in an able plea by your counsel, Mr Schwartz, this is a serious example of manslaughter by unlawful and dangerous act, particularly by reason of the level of your uncontrolled and drunken anger, and by reason of your persistence in putting your victim in a headlock on several occasions, despite the protestations of those present. You ignored the pleas of the witness who tried to persuade you to remain in your caravan, before your final fatal assault on your victim. Instead, you returned in a state of considerable rage and put him in a sufficiently firm headlock to cause aspiration and which, although I cannot be sure of the time for which you held him, on any view was sustained for a not inconsiderable period of time.
There is thus no alternative (as indeed was properly conceded by your counsel) other than to impose a term of imprisonment.
I convict you and sentence you to 7 years’ imprisonment. I direct that you not be eligible for parole until you have served 5 years’ imprisonment. Pursuant to s.18(1) of the Sentencing Act I declare that you have served 444 days in custody and I direct that the same be noted in the records of the Court.
Remove the prisoner.
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