R v Casley
[2021] VSC 503
•17 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0127
| Between: | |
| THE QUEEN | |
| -and- | |
| LIAM CASLEY | Accused |
JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2021 | |
DATE OF SENTENCE: | 17 August 2021 | |
CASE MAY BE CITED AS: | R v Casley | |
MEDIUM NEUTRAL CITATION: | [2021] VSC 503 | First revision: 19 August 2021 |
CRIMINAL LAW — Sentence of LC for affray and two breaches of bail conditions — LC, ST and XY involved in affray with CS — CS outnumbered — Punches exchanged — CS had LC by feet when latter on his back — ST smashed bottle on ground — Spontaneously, JL struck CS in chest with sharp implement — CS ultimately collapsed onto footpath, bleeding profusely— LC and XY each kicked CS once to head while he lay defenceless on path, and then fled with ST and JL — CS died from stab wound — LC’s affray in breach of bail condition prohibiting offending on bail — LC’s flight to shopping centre in breach of bail condition prohibiting attendance thereat — LC, ST and XY not criminally responsible for death of CS — Gravity of affray increased by kicking CS — Relevance of victim impact statements confined to impact of affray — Partial admissions — Pleas of guilty — Some remorse — Prior convictions for assault, dishonesty and drug offences — Youth (aged 18 then; 19 now) — Precarious mental health — Deprived early life but promising steps taken whilst on remand — Guarded to reasonable prospects of rehabilitation — COVID-19 restrictions — Limited application of parity: XY (aged 17 then) sentenced in Children’s Court to youth supervision order; plea of ST (21) adjourned to later date; JL (19) awaiting trial on murder — On affray, LC sentenced to eight months’ gaol combined with community correction order (“CCO”) for eight months — Criminality of breaches of bail largely reflected in aggravation of affray; double punishment to be avoided — On bail breaches, LC convicted and discharged — But for plea of guilty to affray, 12 months’ gaol and 12-month CCO — Crimes Act 1958 (Vic), s 195H; Bail Act 1977 (Vic), ss 30A & 30B; Sentencing Act 1991 (Vic), ss 5 & 6AAA.
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Hayward | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr S Norton | Stary Norton Halphen |
HIS HONOUR:
A YOUNG MAN IS KILLED IN AN AFFRAY
Still only spring, on 25 November last year, the temperature had reached a balmy 31 degrees during the day in Seaford. And, despite the sea breeze, it hadn’t cooled much by early evening. But a feeling of relief was in the air, as it had been nearly a month since any new COVID-19 infections had been recorded in Victoria. As if ready to wash away the pandemic, plenty were out and about near the beach in togs and other skimpy outfits, ready for a swim. Sadly, however, any thoughts Cameron Smith had along those lines were about to be snuffed out in an instant. It happened in this way.
Late that afternoon, Mr Smith (who was 26) and Natasha Stroumos (23) drove to the beach. Just before 7:00 p.m., they had some pizza near the foreshore and then headed back to the train station car park to put the leftovers in Ms Stroumos’s car. As they neared Chapman Street, they saw two younger people sitting on a council bench. The female, Scarlett Taylor (aged 21), called Ms Stroumos a “slut” and a “fucking fat bitch”. When Ms Stroumos turned to look, Ms Taylor and the male with her, Jack Ledlin (19), both said, “Keep walking, just keep fucking walking.” This prompted someone from a nearby shop to poke her head out the door and say, “You guys right?”
Neither Ms Stroumos nor Mr Smith responded to the abuse; they just kept walking. Mr Smith told Ms Stroumos not to worry, and that she was not fat, but sexy. He said he would head-butt the male if anything started.
Once they got to the car park, Ms Stroumos raised the possibility of returning to the beach by car, instead of on foot, in order to avoid the abusive couple. But Mr Smith said they would be okay and, “We’ll just walk past them.”
As it happened, when they walked back along Station Street, the same couple had been joined by two more males — namely, “XY” (aged 17)[1] and Liam Casley (18). Those four then approached Ms Stroumos and Mr Smith. Some of them yelled things along the lines of “Keep walking” and “Do you want to have a fight, have a go?”
[1]XY must not be identified because he is a child dealt with in the Children’s Court (see s 534 of the Children, Youth and Families Act 2005 (Vic)).
Evidently, there had been ill feeling between Ms Taylor and Mr Smith and Ms Stroumos because of some to-do over a “stolen” drink at a New Year’s Eve party in 2019.
Anyway, whatever the history between them, things went from bad to much worse when one of the males in the group — it is not known which one — up and punched Mr Smith. Mr Smith’s response was to say, “You want a go,” and then to strike the male back. Ms Stroumos told Mr Smith to stop because he was outnumbered. She was right. But, alas, it was too late: it was on now. Mr Smith handed Ms Stroumos his sunglasses and stubbed out his cigarette. Then he began trading punches with members of the group — although, again, it is not known which ones in particular.
Much of the balance of the incident is clearer, as it was caught, at least in part, on a mobile phone camera used by a bystander. Thus, it is plain that, somehow, Mr Casley ended up on his back on the nature strip and kicked out at Mr Smith, who either took or had hold of his foot.
Clearer still is that, next, out of nowhere, Mr Ledlin rushed in and, with a round-arm swing, struck Mr Smith in the chest with what must have been a sharp object held in his right hand. While this caused Mr Smith to bleed through his shirt in the chest region within seconds, he did not go to ground, at least initially.
Mr Casley then got to his feet and shaped-up to Mr Smith, but each then backed away from the other, as if they had called a truce or just weren’t sure what to do next. However, such thoughts must have passed from Mr Casley’s mind, at least, as he, XY and, to a lesser extent, Mr Ledlin all then moved towards Mr Smith as he continued to back away onto the footpath. At about the same time, after moving towards Mr Smith too, Ms Taylor, who was carrying a bottle, turned to face bystanders and said, “Get the fuck back, slut.” She then threw the bottle to the ground, causing it to smash near another female.
At some point during the affray, XY said to a bystander, “He hit a girl, bro. He hit a girl.” (This appeared to be a reference to Mr Smith, although the assertion was mistaken: he had not hit a girl.)
As much as Mr Smith, initially, had appeared to be unaffected physically by the blow to his chest, within a few seconds, the bloodstain on his shirt had grown much larger. He slumped to the footpath, and ended up lying motionless on his back.
It was then that Mr Casley did what Mr Smith’s father was later to describe — fairly, in my view — as a despicable thing. For Mr Casley moved in and kicked the defenceless Mr Smith to the head. Worse still, the kick was so hard that part of Mr Smith’s body lifted off the ground briefly. It is sickening to see. Yet XY, with more breathtaking cowardice, immediately followed with precisely the same action. His kick also shifted Mr Smith’s body. Goodness knows what drives people to such low acts. Perhaps I am out of touch. I can understand a stupid affray, wrong though it is; but I can’t fathom why anyone would stoop so low as to kick a defenceless man in the head.
Then, instead of coming to their senses and trying to help Mr Smith, the group of four only added to their disgrace by scurrying away like rats towards the railway station.
Terrified bystanders, including Ms Stroumos, rushed to Mr Smith’s aid. It was now apparent to all that he had been stabbed. Protective services officers and local police tried to help too. Paramedics arrived shortly afterwards. But, despite the best efforts of all concerned, Mr Smith could not be revived. His chest injury was too severe. Tragically, he died where he fell.
At this point, it is important to note that it is agreed that neither Mr Casley nor XY nor Ms Taylor was aware of or a party to what is now accepted to have been a stabbing of Mr Smith by Mr Ledlin. On the other hand, by the time he slumped to the path, it was plain for all to see that Mr Smith was in a bad way, whether or not the bleeding was noticed.
Over the next couple of days, all four of those who fled were arrested and charged with various offences.
Given his tender age, XY was dealt with in the Children’s Court. Ultimately, he pleaded guilty to affray and several other charges unrelated to this incident. Having spent over three months in custody, XY was placed on a youth supervision order for 12 months, without conviction.[2]
[2]Given the different sentencing regime that applies in the Children’s Court, and the absence of prior appearances, XY’s sentence is of only very limited relevance for parity purposes.
Mr Ledlin was charged with murder. He is due to face trial in this Court on a date to be determined.
Mr Casley and Ms Taylor were both charged with affray and breaches of bail. Each has pleaded guilty to those charges in this Court. The case against them was opened on 2 August. Mr Casley’s plea in mitigation was conducted the same day, whereas Ms Taylor’s was adjourned for hearing on 25 October. Thus, Mr Casley is the only one of the remaining three accused that I shall be dealing with this morning.
Mr Norton, who appeared for Mr Casley, submitted that his client should be sentenced to a combined prison sentence and community correction order (“CCO”). The prison sentence, he submitted, should not exceed the time he has already spent in custody, which is now over eight months. Mr Hayward, who appeared for the Director of Public Prosecutions, expressly conceded that “a term of imprisonment equivalent to ‘time served’ coupled with a CCO could justly be imposed”.
As will be seen, and for reasons I am about to give, I agree with those submissions and concessions and will impose such a sentence. I shall announce the precise details of the sentence at the conclusion of these reasons.
Before doing so, however, I must spend some time summarising other parts of the background to, and circumstances of, Mr Casley’s offending in more detail; addressing the victim impact statements made by Mr Smith’s family; assessing the nature and gravity of the offences; outlining the mitigating factors; and discussing sentencing purposes and current sentencing practices.
FURTHER SUMMARY OF BACKGROUND TO, AND CIRCUMSTANCES OF, OFFENDING
Introduction
The following description of the further events surrounding the offending, like the foregoing account, is taken largely from the summary of prosecution opening read to the Court by Mr Hayward or other evidence before the Court. While Mr Norton took no issue with that summary, there was at least one area in which the parties differed on what I should infer from the agreed facts. I shall identify that area of dispute later and explain my findings in that regard.
Cameron Smith
Cameron Smith was the son of Michael and Michelle Smith. As mentioned earlier, he was only 26 at the time of his death. He had two sisters, Chantelle and Taylah Smith. He was a talented athlete; and represented Victoria as a youth in long-distance running events, including the gruelling steeplechase. After finishing school, he completed an apprenticeship in carpentry and went on to work in the same field. Justifiably, his family and friends are very proud of his achievements, and always will be.
In April 2017, Mr Smith formed a relationship with Ms Stroumos. They remained together for about three years. By November 2020, however, they had broken up, but they remained friends and were in regular contact with each other. Indeed, as we have heard already, they were together on that fateful evening.
Liam Casley
Liam Casley, who was only 18 at the time of the offending, is still only a young man, at 19. I shall say more about his personal circumstances later in these reasons. Suffice it to say now that he has had a rather troubled and deprived early life.
A previous to-do
Mr Smith and Ms Stroumos had met Ms Taylor at a New Year’s Eve party in 2019. During the party, a dispute arose between Ms Stroumos and Ms Taylor after a drink belonging to Ms Taylor was taken by Mr Smith and given to Ms Stroumos. After that night, Ms Stroumos did not see Ms Taylor again until 25 November 2020.
The affray
Instead of repeating the substance of the summary I have already given of the affray, I shall add the following other matters of detail relevant to that offence.
First, there were several bystanders who witnessed aspects of the affray. There is no dispute that a person of reasonable firmness who saw these events would be terrified.
Medical treatment
Next, turning to events immediately after the group of four ran away, Ms Stroumos, who by then realised that Mr Smith had been stabbed, rang triple-zero. Along with two other bystanders — Jared and Crystal Searle — Ms Stroumos attempted to render first aid. But Mr Smith was unresponsive and bleeding profusely. Nearby protective service officers Jude Johnstone and Riccardo Rossi assisted with CPR under instruction from an ambulance operator.
At about 7:02 p.m., paramedic Eamon Glass arrived, and other paramedics arrived soon afterwards. By then, Mr Smith was unresponsive, had no pulse and was not breathing. The paramedics made further attempts to revive Mr Smith, but, inevitably, they were unsuccessful. He died at the scene.
The trail of the four accused
After running away from Station Street, the four accused ran through the Seaford railway station car park. As they did so, Mr Ledlin, while holding an object in his right hand, threw away a cardboard six-pack holder.
At 7:20 p.m., the group was seen on the walking trail alongside Kananook Creek. This was about a kilometre from the railway station car park. Around the same time, one of the accused was heard to say, “We need to get our stories straight. If they come, don’t run, nothing.” Another said, “We will just say we were at the station and we just came down for a swim.” Ms Taylor said, “I’m scared.”
At about 7:26 p.m., Mr Casley stopped Vladimir Velechko, who was walking on the trail, and asked to use his mobile phone. Mr Casley called his grandmother’s number and asked to be picked up. Then he called for a taxi using the false name “James”. Taxi driver Nurindo Pal picked up the group from McCulloch Avenue and drove them to the Karingal Hub Shopping Centre. During the ride, they were singing and laughing. At about 7:50 p.m., the group left the taxi without paying the driver and went into the shopping centre.
Autopsy
The next day, 26 November, an autopsy was conducted on Mr Smith by pathologist Dr Michael Burke at the Victorian Institute of Forensic Medicine. Dr Burke concluded that Mr Smith died as a result of the stab injury to the chest. In addition, Dr Burke identified the following injuries:
a) an abrasion measuring about 1.0 cm x 0.5 cm in the region of the right collarbone;
b) an abrasion about 1.0 cm in size on the right elbow;
c) an abraded injury measuring about 3.0 cm x 0.8 cm to the left elbow;
d) two abrasions to the front of the left knee, covering an area of about 10.0 cm x 4 cm;
e) a 3.0 cm bruise over the left parietal region of the head;
f) two bruises up to 3.0 cm in area over the right parietal region of the head; and
g) a 3.5 cm bruise near the left ear.
There were no fractures to Mr Smith’s facial or skull bones, and no injuries to his knuckles.
Notably, despite the two kicks to the right side of his head, it appears that Mr Smith did not sustain any serious injury as a result of those kicks.
Toxicology results revealed no alcohol or drugs in Mr Smith’s system.
Arrests
The same day, 26 November, police arrested Mr Ledlin at his home address.
At the same premises, police also found Ms Taylor’s mobile phone and purse in a bedroom. Over the following 24 hours, negotiations took place between police and Mr Ledlin’s father, in an effort to bring Ms Taylor to the Frankston Police Station. This ultimately occurred on 27 November. Ms Taylor was arrested and interviewed on that date.
The same day, police found Mr Casley hiding under a desk at an address in Carrum Downs. He was arrested and taken back to the police station for an interview.
Record of interview with Mr Casley
Mr Casley was interviewed by Detective Senior Constable Abbey of the Homicide Squad, who became the informant. Among other things, Mr Casley said the following:
a) He was with some friends and, “Everyone was going home.” He saw Mr Smith. He said he believed that Mr Smith had previously assaulted someone they knew. He said, “So I did the right thing, and I said, ‘Let’s punch on,’ and that was that.”
b) He had been drinking a lot that day.
c) When asked for more detail, Mr Casley went on to say he had been told that Mr Smith had assaulted a woman. He said, “I fought for what I stood for … So I did the right thing. I said, ‘Let’s punch on.’ That’s it. Like, see how he likes it.”
d) Mr Casley said that Mr Smith tried throwing punches, but that he couldn’t remember any connecting.
e) When asked who was with him, Mr Casley said, “I taught myself, you never dob one of your friends in. People have morals and my morals are not to dob my friends in, so I’m not gonna go against my own morals.”
f) He said, “I’m pretty sure that the bloke tried jumping on top of me when I was on the floor and it — I guess it ended after that. I ran away.”
g) Mr Casley went on to say that he was “a really bad drinker” and had been drinking since he was 13 or 14.
h) He said of Mr Smith, “I got told by someone that he hurts women; that’s all you need to know. I’m in the right here. I did not kill anyone.”
i) He said it must have been the day of the affray itself that he was told that Mr Smith had assaulted a woman. His intention was just to talk it out.
j) He said that, after the affray, “I got an Uber to my friend’s house and I stayed there the night.”
k) He said the next morning he saw something on Facebook about what had occurred, that a person had been stabbed and died, which made him throw up and feel sick.
l) He said when he was arrested, he hid under a table because he was scared that he’d be hurt by police. But he was not hurt by police when he was arrested.
m) Mr Casley was asked, “When you had this scuffle; when you said you ran, where was the bloke when you ran off?” Mr Casley said, “I’m pretty sure I jumped over the top of him when I ran. He was lying on the floor.” When asked if he remembered anything else about Mr Smith at that stage — whether he was talking or breathing — Mr Casley said, “I didn’t have time to check.”
n) Police then showed Mr Casley footage of the incident from the mobile phone. They also showed him stills from the footage in chronological order. He identified Mr Smith and himself on the stills.
o) He agreed that it appeared from an early still that it looked like Mr Smith dragged him along the ground by the foot. He said, “I think I fell over,” but he could not remember.
p) After being shown further stills depicting Mr Smith being stabbed, Mr Casley said he could not remember seeing Mr Smith stabbed. He did not know what was used to stab him. He did not see any weapons that day. He did not know there was a weapon.
q) Mr Casley agreed that a still from a moment after Mr Smith had been stabbed appeared to show him (Mr Casley) back on his feet in a fighting stance.
r) It was put to him that Mr Smith had a fair amount of blood on his shirt. When asked if he remembered the blood, Mr Casley said, “I don’t know. I think I just remember seeing blood. I’m not too sure, but I just remember, after I seen the body drop, I ran.”
s) When shown a later still depicting Mr Smith on the ground, Mr Casley said, “I think that’s when I jumped over him.”
t) It was put to Mr Casley, “I think you were kicking him and we’ve got witnesses who say that you were. What have you got to tell us about that?” Mr Casley replied, “I thought I ran away.”
u) This exchange then took place: Question: “We’ve got a video that shows you approach this man. He was [lying] on the ground bleeding and you laid the boot in. Do you remember doing that?” Answer: “Next photo, please.” Question: “Do you remember doing that?” Answer: “No, obviously not. I thought I jumped … over him.” Mr Casley went on to repeat, “I don’t think I kicked him when he was on the floor; I thought I ran away.”
v) He agreed that a photo of a phone which had been left at the scene was his. He declined to provide the password to it. He identified himself in the stills from the Seaford railway station CCTV. Police showed him stills from the taxi that he and the other accused had taken. He identified himself in one of those stills. He declined to identify anyone else. He went on to say that he was pretty sure that he had gone in the taxi to the Karingal Hub Shopping Centre.
w) He said, “I had so much drinks that day, so I’m trying to piece it all together.”
x) Mr Casley was asked about where the white T-shirt which Mr Ledlin had been wearing had gone after the affray. Mr Casley said he did not know where it or the weapon had gone.
y) The police asked why Mr Casley’s loyalty was such that he did not identify who stabbed Mr Smith. Mr Casley said, “I would hope you would keep your mouth shut, would you not?”
At the conclusion of the interview, Mr Casley consented to the taking of a DNA sample and fingerprints. He declined to take part in an identity parade.
The bail offences
I turn briefly to the two summary bail offences to which Mr Casley pleaded guilty and which were transferred to this Court.[3]
[3]Pursuant to s 145 of the Criminal Procedure Act 2009 (Vic).
On 6 June 2020, Mr Casley was arrested by police and charged with offences including assaulting police, resisting police and being drunk in a public place. He was released on bail with conditions, including that he not be at or within 100 metres of Karingal Hub Shopping Centre. Thus, his attendance at that shopping centre with the other accused immediately after fleeing from the affray was a breach of that condition and constitutes a summary offence under s 30A(1) of the Bail Act 1977 (Vic).
Further, by committing the indictable offence of affray whilst on bail, Mr Casley also committed a summary offence against s 30B of the Bail Act.
VICTIM IMPACT STATEMENTS
I turn now to the victim impact statements before the Court. They were made by Mr Smith’s father Michael Smith; his mother Michelle Smith; his younger sister Taylah Smith; and his former girlfriend Ms Stroumos. Mr and Mrs Smith and their daughter read their statements to the Court, whereas Ms Stroumos’s statement was read by Mr Hayward.
Those statements reveal, in an eloquent and powerful manner, how the loss of their authors’ loved one has had a grave impact on their lives.
As I explained (directly) to his family and Ms Stroumos at the hearing, however, the law prevents me from taking into account the impact Mr Smith’s death has had on them in sentencing Mr Casley. There is only a limited sense in which Mr Smith’s death may be relevant to an assessment of the gravity of the affray. I shall return to this a little later.
Of course, if Mr Ledlin were ultimately convicted of a homicide, then, when sentencing him, I would go into each of the victim impact statements in more detail, as they would have a more direct relevance in assessing victim impact.
In the present case, however, since Mr Casley was not charged with or convicted of a homicide offence, I must not sentence him in any way for the effects of any such crime on Mr Smith or his loved ones.
Instead, in so far as victim impact is concerned, I am confined to considering the impact upon him and his loved ones for the crimes of affray and breaching bail. The affray is the most relevant of the three offences. And, in so far as there was violence directed at Mr Smith during that offence, including the kick to his head while he was defenceless, and in so far as the thought of that behaviour is distressing to his loved ones, I take that victim impact into account.
Indeed, after reading his prepared statement, Mr Smith’s father asked if he could add something. He said this:
Although the two people accused did not strike the blow that killed my son, their actions against my son were despicable and disgusting and they’re not human beings [as] I know [them].
While put with the aching sadness of a parent who has lost a child, those remarks, when applied to the actions of Mr Casley, are, in my view, perfectly justifiable. Further, the impact upon Mr Smith senior revealed by those remarks is the type of victim impact that may be taken into account in sentencing for affray. The same may be assumed of his other loved ones. And I do take that into account.
The other sense in which victim impact may be taken into account for affray, in a more generalised way, is the likely impact on at least some of those who witnessed the offence. This is because the offence, by definition, involves the use of, or a threat to use, unlawful violence which would cause a person of reasonable firmness present at the scene to be terrified. Ms Stroumos’s experience is of that type, although it was worsened immeasurably by the knowledge that Mr Smith had died.
I wish to add this. There is nothing this Court can say or do that will heal the grief and pain of Mr Smith’s family. The sentence I must impose is not a reflection of the worth of Mr Smith’s bodily integrity. Nor, if I were dealing with homicide at this point, would it be a reflection of the worth of his life — as if anything so precious could ever be valued in any event. Rather, the sentences I am about to impose for affray and breaching bail are a reflection of a large number of factors which I am required by law to take into account, only one of which is the impact on victims.
NATURE AND GRAVITY OF OFFENCES
Introduction
I turn now to other factors that inform the nature and gravity of the offences. I shall commence with the affray.
Affray
Affray was once a common law offence in this State. But, on 13 September 2017, affray at common law was abolished and replaced with a statutory version with very similar elements.[4] In particular, s 195H of the Crimes Act 1958 (Vic) provides that a person who uses or threatens unlawful violence, and whose conduct would cause a person of reasonable firmness present at the scene to be terrified, commits an offence and is liable to imprisonment for up to five years.
[4]See ss 195G and 195H of the Crimes Act 1958 (Vic).
As Mr Hayward submitted, the objective gravity of Mr Casley’s offence of affray is informed by a range of factors. Some tend to increase the seriousness of the offence, others lessen its gravity. In particular, he emphasised that the offence:
a) was carried out in daylight in a suburban street;
b) involved four males and a female;
c) involved punches and kicks, the latter of which to Mr Smith’s head were most troubling;
d) involved Ms Taylor smashing a bottle near others;
e) was of relatively short duration;
f) caused alarm and terror to several innocent bystanders; and
g) was motivated by some misguided and mistaken sense of vigilantism.
Mr Norton referred to some of the same factors, but added the following other relevant considerations (which, again, cut both ways):
a) there was no pre-planning;
b) while Mr Ledlin was armed, this was not known by Mr Casley, who was not armed;
c) Ms Taylor’s use of the bottle was not particularly grave;
d) while Mr Casley kicked Mr Smith when he was defenceless on the path, Mr Casley did not know of the extent of his injuries at that time;
e) Mr Smith was outnumbered;
f) Mr Casley fled the scene and did not render assistance; and
g) Mr Casley was on bail at the time.
While Mr Hayward and Mr Norton agreed that Mr Casley is not to be sentenced as if he were in any way responsible for Mr Smith’s death, both also accepted that the authorities allow a judge to take into account the death of a victim caused in the course of an affray as a way of assessing the gravity of the particular instance of affray.[5]
[5]Counsel referred to R v Feretzanis [2003] VSCA 8 at [18]-[19] (per Ormiston JA; Eames JA agreeing; Callaway JA not deciding); DPP v Russell (2014) 44 VR 471 at 478[42]-479[44] (per Maxwell P, Weinberg & Santamaria JJA).
I should say at once that I have acted on the joint submission of counsel in this regard. That said, in my view, great care must be taken in assessing the gravity of any affray, and this affray in particular, by reference to the fact that a person was killed in the course of such an offence. There are several reasons why. First, this Court must be astute to avoid the risk of sentencing Mr Calsey for more serious offending for which he is not responsible — namely, causing the death of Mr Smith. Second, the spontaneous behaviour of Mr Ledlin was such a grave escalation of what had gone before that only very limited weight may be afforded to the fact that death was caused in assessing the overall gravity of the affray. Third, while Mr Casley’s subsequent preparedness to kick the defenceless Mr Smith to the head may suggest otherwise, I think that especial care must be taken in sheeting home to him a level of gravity of the affray as measured by the fact that death was caused when it is accepted that he knew nothing of Mr Ledlin’s blow or of the weapon he wielded and was not in any way complicit in that blow. Thus, I have sought to assess the gravity of the affray by taking into account the fact that Mr Smith was killed, but only in the limited way authorised by the authorities in this State, and bearing in mind the points I have just made.
Mr Hayward submitted that, while it is accepted that Mr Casley was not aware that Mr Smith had been stabbed fatally when he went to kick him, he must have been aware that he was bleeding heavily from his chest region, for the blood on his shirt was there for all to see. During his police interview, Mr Casley also spoke of seeing blood (although he was not sure). Mr Hayward added that Mr Casley had a closer view than we do on the mobile phone footage and that his denial of kicking rather suggests a consciousness of guilt about the whole incident, including noticing the blood.
Mr Norton submitted that I should not be so satisfied. He pointed to the fast-moving nature of the incident, Mr Casley’s drunkenness, and the poor memory of the incident that he displayed in his police interview. He was even unsure about being dragged along the ground, which was a point in his favour, Mr Norton argued.
In the end, I am not satisfied that Mr Casley was aware that Mr Smith was bleeding at the time he kicked him. While I accept that our view from the mobile phone footage is further away than Mr Casley’s perspective, I struggled to notice the blood on Mr Smith’s shirt until I looked at the footage very closely, and even then it took me a few goes. Mr Casley’s drunkenness, the fact that he was on the ground himself for a moment or two, the fast-moving nature of the incident and the acceptance that he was not aware of the stabbing or the existence of the weapon are other reasons why I doubt that he was aware of the blood at the relevant time. Further, I note that Ms Stroumos’s statements read in a way that suggests she did not become aware of the bleeding on Mr Smith’s chest until after the four accused had scarpered. Yet she was closer to the action than the rest of us.
For the moment, however, I should say this. While a range of competing factors go to make up any sentence, but for his kicking of the defenceless Mr Smith, I doubt that Mr Casley’s behaviour would have resulted in a prison sentence, especially given his relative youth. And while knowledge in Mr Casley that Mr Smith was bleeding heavily before he kicked him would have made his role in the affray even worse, it was still a nasty and morally reprehensible thing to kick him while defenceless and when he was so heavily outnumbered.
Bail offences
The bail offences are of a completely different order of gravity. Each offence is summary in nature and carries a maximum penalty of only 30 penalty units or three months’ imprisonment.
The first of the two bail offences only became an offence because of the commission of the affray whilst on bail. Therefore, it is important to avoid sentencing for the affray and that offence in a way that results in double punishment. Thus, if the commission of the affray whilst on bail is treated as an aggravating feature of the affray, there is little, if anything, left for the bail offence to add by way of criminality.
The second of the two bail offences involved attending at the shopping centre in breach of a bail condition. While this breach is not as intimately bound up with the affray as the first bail offence, it is still important to avoid double punishment in sentencing for that offence and the affray. This is because, in my view, the flight from the scene, which included going to the shopping centre, is indeed an aggravating feature of the affray.
In my opinion, neither bail offence is objectively very serious in the scheme of things. Instead, each is dwarfed in gravity by the affray.
MITIGATING FACTORS
Background and personal circumstances
I turn now to the mitigating factors which were urged on behalf of Mr Casley by Mr Norton.
Before doing so, however, I shall give a brief outline of Mr Casley’s background and personal circumstances, as explained by Mr Norton and the documents he tendered on the plea.
Mr Norton commenced by observing that, in the course of his young life, Mr Casley has endured domestic abuse, familial disruption and troubling mental health. His mother has been an unstable and destabilising influence on his life. On the other hand, his grandmother, who still supports him, has done her best to care for him within that context. Unsurprisingly, Mr Casley has had behavioural issues from an early age — which only increased when he commenced illicit drug and alcohol use, which itself was in part a form of self-medication.
This, in turn, has led to a criminal history in the Children’s Court over the period from early-2019 to late-2020. The offences on which Mr Casley has been sentenced include shoplifting, car thefts, driving offences, bail offences, burglaries, damaging property, assaults, assaulting police or emergency workers, threatening to kill, reckless conduct, graffiti and drug offences. None of these offences has led to a conviction or a custodial sentence.
Deprived background and upbringing
This background leads to the first matter in mitigation.
Mr Casley’s parents separated when he was a toddler. He has no relationship with his father and only fleeting memories of him. In the years that followed the separation, he was brutally mistreated at the hands of his mother’s boyfriend and subjected to appalling disruption and instability. He lived for extended periods with his grandmother from the age of eight. However, these years were interrupted by his mother’s periodic interventions. The Department of Human Services (or its equivalent) intervened no fewer than ten times — the first in November 2005 when he was aged three, the last in February 2019 when he was aged 16. His formal education has been difficult and disrupted, and his exposure to drugs and alcohol in his early teens has impacted on his life’s trajectory.
Mr Norton submitted that these matters ought to lead to a reduction in Mr Casley’s moral culpability. I accept that submission. Let me explain why.
In Bugmy v The Queen, the High Court accepted the following propositions:[6]
[43] … The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest … that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[6]Bugmy v The Queen (2013) 249 CLR 571 at 594[43]-595[43] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
While Mr Casley’s is not the worst case of childhood deprivation and other horrors encountered in practice, it is sufficiently dire to think that his childhood helps explain his recourse to violence when frustrated and his distorted moral framework. The result is that his moral culpability for the inability to control his violent impulses on this occasion is somewhat reduced.
On the other hand, it is also important to recognise, as the High Court did in the last line of the passage extracted a moment ago, that the inability to control violent responses to frustration may increase the need to protect the community from the offender. That said, I am reluctant to treat an offender as young as Mr Casley, and with as limited a criminal history as he has (albeit it is a history of some concern), as attracting that aspect of the principle. And I don’t.
Mental health
The second matter in mitigation concerns Mr Casley’s precarious mental health.
Alarmingly, Mr Casley was first placed on a mental health plan in 2007 when he was aged only four. This arose in the aftermath of assaults and in the context of nightmares and anxiety. After being diagnosed with ADHD and depression at the age of ten, Mr Casley has been on a variety of medication at various stages of his life and has suffered various crises regarding his mental state. He has engaged in acts of self-harm, including attempting suicide. His mental health has been fraught, to say the least. Psychologist Carla Lechner provided a report for the Court. She diagnosed a major depressive disorder, which is consistent with Mr Casley’s history, as is her diagnosis of complex post-traumatic stress disorder.
Mr Norton did not submit that the evidence establishes a connection between these conditions and the offending per se. He did submit, however, that these conditions are relevant to an assessment of the offender who stands to be sentenced. In Mr Norton’s submission, Mr Casley’s mental health is an important aspect of understanding who he is. That understanding ought to lead to a moderation of the weight to be accorded to general deterrence on the basis that he is not a proper vehicle for the full weight of that sentencing purpose.
Mr Hayward expressly agreed with this submission. In particular, while he submitted that general deterrence was of importance, he accepted that that principle ought to be modified in this case in light of the fact that Mr Casley is a young man with a history of mental health difficulties.
I accept those submissions, and will sentence him accordingly.
Admissions
The third matter concerns Mr Casley’s admissions.
As we have seen, following his arrest, Mr Casley participated in a lengthy interview with police. It ran for two hours. Mr Norton submitted that Mr Casley could not have been criticised if he exercised his right to silence. But he did not do so. He made admissions, including as to presence and participation in the fighting. In Mr Norton’s submission, a proper examination of the interview reveals that Mr Casley’s memory of the event was poor but that he was doing his best to tell police what he could remember. For example, he did not recall that Mr Smith had been dragging him along the ground by the feet — a matter which was plainly favourable to him.
I accept that Mr Casley made extensive admissions. However, I do not accept that he simply could not remember kicking Mr Smith to the head. I am satisfied that that is such a significant, nasty and deliberate event that he would not have failed to remember it. That said, perhaps perversely, that he did not want to admit to such deplorable behaviour shows some insight into the wrongfulness of what he had done. In that sense, his lie has a somewhat redeeming aspect to it: it shows that he has a conscience and some decency.
Pleas of guilty
Next, Mr Norton emphasised that Mr Casley pleaded guilty and did so at the earliest practical opportunity. There has been and will be no cross-examination by him of any witnesses. In those circumstances, submitted Mr Norton, he should be afforded the full benefit of both the objective and subjective elements of his guilty pleas. Finally, Mr Norton submitted that additional weight should be afforded to those pleas in light of the strain on the justice system imposed by the COVID-19 restrictions.[7]
[7]As other judges of this Court have observed recently, the utilitarian benefit of pleas of guilty is increased at the present time given the backlog of trials in the wake of the COVID‑19 pandemic. See, for example, DPP v Bourke [2020] VSC 130 at [32] (per Jane Dixon J); and R v Nolan [2020] VSC 416 at [39] (per Taylor J).
Mr Hayward did not challenge these submissions.
He was right not to do so. For the reasons urged by Mr Norton, these early pleas of guilty are a very important factor in mitigation.
Remorse
The fifth matter in mitigation concerned remorse.
Mr Norton submitted that I should find that Mr Casley has at least some genuine remorse. He accepted that his client’s expressions in the interview in that regard are limited. However, in his submission, the context of this young man’s life and the circumstances in which he found himself must be factored in to any such assessment. Further, he submitted that Mr Casley’s expressions of remorse to Ms Lechner and to his sister Tayla Casley (who provided a reference), together with the pleas of guilty and the interview, should lead to a conclusion that there is some true remorse.
As I understood him, Mr Hayward submitted that there could be no remorse in Mr Casley’s initial response, which included his flight from the scene and his troubling remarks in the police interview. However, he made it clear that it is not submitted that Mr Casley has no remorse now. Mr Hayward also accepted that the answers in the police interview were those of an immature man who had not had the benefit of sound moral influences during his upbringing.
In those circumstances, while I am not prepared to find that Mr Casley is utterly remorseful, I do accept that he has some remorse for his actions.
Youth and immaturity
The sixth matter relied on by Mr Norton concerned Mr Casley’s youth. At only 18, he was very young at the time of the offending, and is only 19 now. Further, Mr Norton submitted that the evidence shows that Mr Casley is an immature teenager. His developmental experiences point in that direction and support the like conclusions of the psychologist Ms Lechner.
Mr Hayward accepted that the principles applying to sentencing youthful offenders are engaged in Mr Casley’s case, and particularly the necessity to tailor the sentence in a manner designed to promote the offender’s rehabilitation. Nevertheless, he submitted, this must be balanced against the need for general and specific deterrence.
All else being equal, a younger person is less likely to appreciate risk or consider consequences. In my view, Mr Casley, at 19, is at an age where his values and attitudes are still being formed. It is of course a pity that he has had to spend the last eight months in prison further developing those values and attitudes, but that, of course, is an unavoidable consequence of the nature and gravity of his criminality. However, one of the great aims of the criminal law is to rehabilitate younger offenders. And Mr Casley, who, in my view, is really only a boy in a young man’s body, is young enough to persuade me that rehabilitation is an important consideration in his case.
Reasonable prospects of rehabilitation
The next matter in mitigation concerned Mr Casley’s prospects of rehabilitation.
Mr Norton conceded that Mr Casley’s criminal history and outstanding matters are obviously of concern. However, he went on to submit that, upon closer analysis, it can be seen that his prospects for rehabilitation are reasonable. He is a young man who requires assistance and support. Yet he has not previously had the commitment or wherewithal to take up such assistance as has been offered. Mr Norton submitted that the combination of the support of the Jesuit Social Services and that of the Nexus Programme upon release will provide the necessary structure and support. While in custody, he has shown a commitment to improvement and is now receiving medication to assist with his mental health (which he was not taking at the time of the offending). These matters in combination, submitted Mr Norton, should give the Court some optimism regarding his future prospects.
Mr Hayward submitted that, while Mr Casley is still young and the sentence ought to enhance his prospects of rehabilitation, those prospects must be guarded in light of his poor criminal history; the fact that the current offending occurred while on bail and in breach of sentences involving probation and a good behaviour bond; and his persistent drug and alcohol abuse, particularly his excessive alcohol consumption. That said, Mr Hayward also acknowledged that Mr Casley has completed some courses and worked whilst in custody, and that there has been a period of abstinence whilst on remand. He submitted that Mr Casley’s prospects of rehabilitation are tied to his ability to refrain from abusing drugs and alcohol, and that he will need significant levels of support in the community.
As Mr Norton submitted, despite a limited work history in the community, Mr Casley appears in fact to have a positive work ethic. This is reflected not only in his approach to his work, albeit brief, as an apprentice mechanic, but also during his time on remand. He has worked initially in gardening, then in the kitchen and more recently in heavy industries. That he has done so at 18 or 19 and as an unclassified remand prisoner should be viewed favourably. In addition, as Mr Hayward conceded, he has participated in a number of courses and programmes, including drug-specific programmes. This has occurred in the context of the COVID-19 pandemic restrictions — including limitation of access to education programmes and contact visits. I accept that Mr Casley’s conduct during this period, with all its difficulties, is a genuine credit to him.
I also accept Mr Hayward’s submission to the effect that Mr Casley’s prospects of rehabilitation are tied to his ability to refrain from abusing drugs and alcohol, and that he will need significant levels of support in the community.
Overall, I accept that he has reasonable prospects of rehabilitation.
Pandemic restrictions in custody
Finally, I am satisfied that the hardship of imprisonment for Mr Casley has been greater than usual for as long as the restrictions in the prison system brought about by the COVID-19 pandemic have been operative.
From March last year, personal visits were suspended in Victoria’s prisons, as were educational programmes and many recreational activities. Prisoners have been kept “locked down” in their cells for far longer periods. Those restrictions were relaxed somewhat in December. I assume that the recent lockdowns have meant a return to the more restrictive regimes. Mr Casley has been in custody since November. Further, there is the ever-present feeling of vulnerability to contracting the virus in an environment over which the prisoner has no control.
SENTENCING PURPOSES
Introduction
I turn now to the purposes of sentencing.
Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentences may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
General deterrence, denunciation and just punishment
In my view, general deterrence, just punishment and denunciation are important sentencing purposes in this case of affray. The community should understand that violent behaviour of the type engaged in by Mr Casley is denounced by the courts and may result in a term of imprisonment that reflects, among other things, the level of violence displayed, the degree of terror felt by the public and the particular role of the individual in the affray. Equally, for the reasons conceded by Mr Hayward, the weight to be accorded to general deterrence is not as great as it might be, in view of Mr Casley’s mental health.
Specific deterrence and protection of the community
I am satisfied that some weight is to be accorded to specific deterrence and protection of the community. This is because Mr Casley does have prior appearances for many matters, including assaults, and his vigilante justification for his behaviour was somewhat troubling. That said, those factors are (or will be) offset somewhat by the passage of time and his youth and immaturity, pleas of guilty, remorse and prospects of rehabilitation.
Rehabilitation and protection of the community
While I have assessed Mr Casley’s prospects of rehabilitation as only reasonable (rather than, say, very good or excellent), I think that rehabilitation remains an important purpose in fixing sentence. There are at least three reasons why.
First, that Mr Casley has positive prospects of rehabilitation makes rehabilitation a sentencing purpose that must be afforded weight.
Secondly, rehabilitation, as a matter of principle and good sense, is an important aim for one so young.
Thirdly, I think it is important to recognise the interplay between rehabilitation and protection of the community in any event. Mr Casley will be returning to the community shortly. It is therefore in the community’s interests that such prospects of rehabilitation as he has be maximised, and that he is not crushed, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into society are also as strong as they can be.
Bail offences
The same principles are applicable to the bail offences. As will be seen, however, given their modest level of seriousness and the need to avoid double punishment, I consider it unnecessary to go into any detail about the operation of these principles vis-à-vis sentencing for these offences.
Parsimony
Section 5(3) of the Sentencing Act, relevantly, provides that “a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed”. Similarly, ss 5(4)-(6) set out a similar principle as adapted to the considerations of confinement and the imposition of a CCO. These provisions reflect the common law principle of parsimony. It is a fundamental principle, sometimes forgotten. I have applied these provisions and this principle when considering the appropriate sentence in this case.
CURRENT SENTENCING PRACTICES
Affray
Introduction
I turn now to current sentencing practices. In so far as I can determine them, I have had regard to current sentencing practices for affray, at least in the higher courts.
Sentencing statistics for affray
Sentencing statistics show that, for the period from 2010-11 to 2014-15, prison sentences were not often imposed for affray in the higher courts. Instead, various forms of non-custodial sentence were far more commonly imposed. Where prison sentences were imposed, they ranged from three months’ imprisonment to about 20 months’ imprisonment.[8]
[8]Sentencing Advisory Council, Affray: Sentencing Trends in the Higher Courts of Victoria 2010-11, 2014-15 (Sentencing Snapshot No 191, June 2016).
These statistics are, of course, of very limited utility, for several reasons. First, they are somewhat out of date now. Secondly, they are for the common law offence, although that should not alter things much, if at all. Thirdly, and more importantly, they do not distinguish cases according to their most important sentencing considerations — such as the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some (rather limited) guidance.
Case comparisons
Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. However, counsel did not refer me to any other sentences as useful comparators. I hasten to add that I make no criticism of counsel in this regard. Indeed, I considered various sentences imposed in individual cases over the years, but none struck me as a useful comparator.
Bail offences
I was not referred to any sentencing statistics or case comparisons for the bail offences. Nor have I considered any other such statistics or case comparisons. As it happens, I was unable to find any.
REPORT ON SUITABILITY FOR CCO
Following the plea hearing, and with the concurrence of the parties, I called for a report from Corrections on the suitability of Mr Casley for a CCO.
Mr Casley was assessed as suitable for a CCO. The author of the report recommended treatment and rehabilitation conditions for drugs, alcohol, mental health and programmes aimed at reducing reoffending, as well as a condition concerning supervision. This morning, both counsel submitted that such conditions would be appropriate. I intend to take up those recommendations.
SENTENCE
I turn now to sentence.
Mr Casley, would you please stand?
Sentence for affray
Balancing all matters as best I can, on the offence of affray, Mr Casley is convicted and sentenced to eight months’ imprisonment combined with a CCO for eight months.
The conditions of the CCO will include all core conditions plus the following additional conditions:
a) treatment and rehabilitation conditions in respect of the following:
1) assessment and treatment (including testing) for drug abuse or dependency;
2) assessment and treatment (including testing) for alcohol abuse or dependency;
3) mental health assessment and treatment that may include psychological, neuropsychological or psychiatric treatment; and
4) any programme that addresses factors related to Mr Casley’s offending behaviour; and
b) supervision.
[Mr Casely indicated his consent to the order. Given that this hearing was conducted via WebEx from the prison, arrangements were made to send the order to the prison to have it signed by Mr Casley.]
Sentences for bail offences
On each summary offence of breaching bail conditions, Mr Casley is convicted and discharged.
Given that I have already taken into account, as aggravating features of the affray, the fact that that offence was committed whilst on bail and that Mr Casley fled the scene immediately afterwards, I was concerned that to impose any further sentence for the bail offences, at least in part, would amount to double punishment.
Further, despite Mr Casley’s prior appearances for bail offences, and while the breach of the conduct condition by attending the shopping centre may be said to have a further separate element of criminality over and above the other bail offence (which arose only because of the commission of the affray), I take the view that the former is such a minor offence that it does not warrant a term of imprisonment in the first place.
Declaration of pre-sentence detention
Pursuant to s 18 of the Sentencing Act, I declare that, including today, 264 days of pre-sentence detention be reckoned as served under this sentence.
I note two things about that declaration. First, it exceeds the eight months’ imprisonment, as it must.
Second, it may well be that, by reason of emergency management days attributable to prison lockdowns or restrictions as a result of the current pandemic, the eight months is calculated by the authorities to have expired even earlier. That is a matter for the authorities.
Effect of sentences
The effect of these sentences is that, because Mr Casley has already served more than the eight months’ imprisonment, he will be free to commence the CCO component of this combined sentence when he is bailed on his outstanding charges, or is otherwise released from any sentence that may be imposed if he is convicted of any of those alleged offences. Mr Norton advised that a bail application was listed for hearing in the Magistrates’ Court on 26 August 2021. Presumably, then, if the application is granted, Mr Casley will commence the CCO soon thereafter.
Section 6AAA declaration
Finally, s 6AAA of the Sentencing Act requires me to declare the sentence I would have imposed for the affray had Mr Casley pleaded not guilty but been found guilty of that offence following a trial. It is notorious that this is a difficult task at the best of times, but I have found it even more difficult than usual in this case. The most I can do in this case is declare that, because of the importance I think that must be placed on protection of the community through Mr Casley’s rehabilitation within the community, I expect that I would have imposed a sentence in the order of 12 months’ imprisonment combined with a CCO for 12 months.
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