R v Brown - [2017] VSC 240

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0023

Between:

THE QUEEN
-and-
SHANE RYAN BROWN	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April 2017
DATE OF SENTENCE:	10 May 2017
CASE MAY BE CITED AS:	R v Brown
MEDIUM NEUTRAL CITATION:	[2017] VSC 240

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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Accused stabbed brother once to the chest, killing him, after brother engaged in threatening and violent behaviour towards family members – Excessive self-defence/defence of others – Full admissions – Plea of guilty offered early – Profound remorse – Hardship of imprisonment – Reasonable to good prospects of rehabilitation – Nine months of pre-sentence detention denied because of service of another sentence – Totality – Mercy – Unusual case calling for unusual sentence – Sentence of six years and three months’ imprisonment with non-parole period of three years and three months – But for plea of guilty, sentence of nine years’ imprisonment with non-parole period of six years – Sentencing Act 1991 (Vic), ss 5, 6AAA & 18.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J McWilliams	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr S Johns	James Dowsley & Associates

HIS HONOUR:

Overview

On the evening of Friday 10 June 2016, Shane Ryan Brown committed manslaughter by stabbing his brother Wayne Daniel Brown once to the chest with a knife.

Fratricide is rare, thankfully. One of its tragic consequences, however, is that, because the deceased and the killer are siblings, other family members often are left in a state of exquisite conflicting agony: the life of one loved one is lost but the life of an equally cherished sibling is in ruins.

That agony is especially acute in the present case, particularly for the brothers’ parents. For, not only have they lost the life of one son at the hands of the other, but they also know that, in the lead-up to his death, Wayne’s behaviour was appalling – indeed, they were among the victims of it – and that Shane’s response involved an attempt to defend their family, albeit an unlawful and excessive attempt.

This, in very short terms, is what happened. On that fateful night, the two brothers were at the home of their parents – Colin and Iolanda Brown – in Cranbourne. Also present were Wayne’s partner Michelle Dawson and their fifteen-year-old daughter Madison Jagger.

No one really wanted Wayne to be there. He had a history of violence towards others, including his family members. In fact, an intervention order in favour of his father meant that Wayne should not have been at the house at all. But, as is often the way in such situations, his parents tolerated his presence occasionally, even to the point of allowing him to sleep in the garage when it suited him. On this occasion, following a request by Wayne, it was Michelle who suggested they should meet…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Brown

Details

AGLC: R v Brown [2017] VSC 240
Case: [2017] VSC 240
Decision Date: 10 May 2017

CaseChat Overview and Summary

In the matter of R v Brown, the accused was charged with manslaughter by unlawful and dangerous act. The accused stabbed his brother once to the chest, resulting in his death, after the brother engaged in threatening and violent behaviour towards family members. The case was heard in the County Court of Victoria. The accused had pleaded guilty to the offence and had offered the plea early, expressing profound remorse for his actions. The legal issues before the court were the appropriate sentence to impose, taking into account the excessive self-defence/defence of others plea, the accused's admissions, the hardship of imprisonment, and the prospects of rehabilitation. The court also considered the effect of pre-sentence detention and the need for the sentence to reflect the totality and mercy principles.

The court found that the accused's actions were an excessive response to the circumstances and that the plea of excessive self-defence/defence of others was not applicable. However, the court recognised the accused's early guilty plea, profound remorse, and reasonable to good prospects of rehabilitation. The court also took into account the hardship of imprisonment and the effect of pre-sentence detention. The court concluded that this was an unusual case that called for an unusual sentence, taking into account all the relevant factors. The court sentenced the accused to six years and three months' imprisonment with a non-parole period of three years and three months. The court noted that, but for the plea of guilty, the sentence would have been nine years' imprisonment with a non-parole period of six years.

The court's reasoning was based on the Sentencing Act 1991 (Vic), ss 5, 6AAA & 18. The court found that the sentence imposed was appropriate, taking into account all the relevant factors. The court considered the need for the sentence to reflect the totality and mercy principles, and to provide the accused with an opportunity for rehabilitation. The court also recognised the impact of the sentence on the victim's family and the community. The court's final orders included the sentence of six years and three months' imprisonment with a non-parole period of three years and three months, and the denial of credit for nine months of pre-sentence detention because of the service of another sentence. The court also ordered that the accused be placed under supervision for a period of three years following his release from prison.

Orders