R v Christensen
[1998] VSC 218
•15 September 1998
SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION
Not Restricted
No. 1549 of 1997
THE QUEEN
v.
JASON MACFARLANE CHRISTENSEN
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JUDGE: VINCENT, J. WHERE HELD: MELBOURNE DATE OF SENTENCE: 15 SEPTEMBER 1998 MEDIA NEUTRAL CITATION: [1998] VSC 218
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CATCHWORDS: Manslaughter - Ingestion of alcohol - Unlawful and
dangerous act - Rehabilitation.
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APPEARANCES: Counsel Solicitors For the Crown Mr. J. Rapke Office of Public Prosecutions For the Accused Mr. S. Langslow Stary & George
HIS HONOUR:
Jason Macfarlane Christensen, the jury empanelled upon the trial at which you were presented on a count that at Ferntree Gully in the State of Victoria on 29 June 1997 you murdered a young man named Ryan Johnson-Boe, returned a verdict of not guilty of that offence, but guilty of the alternative offence of manslaughter. What that means in the context of this matter is that they were not satisfied beyond reasonable doubt that you intended to kill or to cause really serious injury to your victim or that you acted in the knowledge that your conduct would probably produce one or other of these consequences. However, the jury was satisfied that your actions were both unlawful and objectively dangerous in the circumstances.
Although the background to the commission of your offence has been the subject of considerable attention during the trial, it is still not possible to state with any measure of confidence precisely what occurred in the approximately 15 minutes of relative activity which preceded it, or even at the moment of its commission. Nevertheless, there is in the evidence sufficient material to enable the important features of your behaviour to be identified and the character and extent of your culpability to be assessed.
You are, according to the considerable body of evidence which has been given to that effect, a young man of hitherto good character and reputation. However, it would also appear from the report of Mr Jeffrey Cummins, an experienced clinical psychologist, that you have suffered for some time from a significant drinking problem, even if you were not to be regarded as an alcoholic at this stage. It also appears, according to statements that you made to him, that when affected by intoxicating liquor you have a tendency to become argumentative and have on occasions become involved in fights.
In the course of his submissions this morning Mr Rapke has argued that you have evidenced an obvious immaturity with respect to overindulgence in alcohol and had not, until a tragedy occurred, attempted to deal with it. I think there is obvious force in this proposition.
As far as the general circumstances are concerned, on the night of Saturday, 28 June 1997, you went with some friends to the Stylus Nightclub which is situated on the Burwood Highway at Ferntree Gully. You arrived there some time after 11 p.m. and remained until about 3.45 a.m. when you were requested to leave by security staff. One of your friends, a young man name Ben Allen, had become involved in a dispute with another young man at the club and had received a punch in the eye. I accept that you became very upset over this incident and that you objected to the fact that you were required to leave the premises. You perceived your ejection as unfair in the circumstances. Whether or not this perception accorded with any objective reality is not possible to determine. I accept that, once outside, you behaved in an aggressive fashion towards staff members from the nightclub and that you attempted to re-enter the premises. It obviously took some time to control you. However, it seems that after a period of minutes you settled down a little and with your friends commenced to walk to a nearby service station from which you intended to call a taxi.
As I have earlier mentioned, there is some uncertainty with respect to the precise sequence of events thereafter. However, it seems likely that some incident, almost certainly of a quite trivial character as it passed unnoticed by other people who were in close proximity, took place as you were crossing the exit driveway from the nightclub. A red Peugeot motor vehicle being driven by another young man named Adam Stone and in which the deceased was travelling as a front-seat passenger was apparently impeded in its progress by either you or some other member of your group. I accept that some words passed between the occupants of this vehicle and you. I should add at this point that I am satisfied that all of the persons in this car were affected by liquor to some extent. One was intoxicated and asleep in the back seat. The deceased must, on the basis of the reading of .24 per cent of blood alcohol subsequently obtained, have been very substantially affected and the driver, Stone, who three hours later was recorded at .077 per cent probably had a higher reading at that earlier time.
From then on, and almost certainly as a consequence of the effect of alcohol on the various participants, the situation escalated. Whilst the movements of the vehicle after the initial incident have been the subject of contention, and it is unclear as to precisely what they were, there can be no doubt that it did not leave the area and there is some support for the view that it executed at least two circuits along the Burwood Highway. At some point it seems that you moved on to the roadway, why is also a little unclear, and that your left elbow came into contact with some portion of the vehicle. At one stage of the incident a full stubbie bottle was thrown from the car by the deceased. It landed sufficiently close to your companions and yourself that some of you were splashed with glass and beer. You claim that you were grazed by the bottle. Although I have serious reservations about the reliability of your assertion on this aspect I am prepared to accept for sentencing purposes that this may well have occurred or at least that the bottle passed very close to you and, accordingly, I will proceed on that basis.
Whatever may have been the precise precipitating events I am satisfied that, being easily stirred to anger in your alcohol-affected state, you became very upset indeed by what had happened and you moved to the opposite side of the road for the purpose of retaliating against the occupants of the car if it returned. After a short time it did so, travelling along the centre lane of the roadway and heading in the direction of the city. You positioned yourself somewhere near the edge of the carriageway and hurled a 10 kilogram rock at it as it passed at a speed of approximately 93 kilometres an hour. The rock passed through the windscreen of the vehicle, killing the deceased. Where you picked up this rock from is unknown. Accordingly, I cannot find that, as the prosecutor contended during the trial, it was taken by you from the northern side across the roadway at the position from where it was ultimately thrown. In any event, and wherever the rock came from, your conduct was unlawful on a number of different bases, as your counsel has conceded, and appallingly dangerous. As a consequence, a young man who, it is apparent from his sister's victim impact statement, was a fine young person of almost your own age and who, like you, was pursuing an apprenticeship course, is dead. Although you did not intend to achieve this outcome or perceive the probable result of your actions, the undeniable reality is that he, too, died of your expression of what was probably alcohol-induced aggression.
Mr Coghlan QC, the Acting Director of Public Prosecutions, who appeared with Mr Rapke on the plea compared your mindless behaviour to that of an individual who causes the death of another through culpable driving. Whilst there is something to be said for this comparison in the sense that in each case the reasoning capacity of the offender may be affected by the consumption of alcohol and neither intends to achieve the result which in fact occurs, some care needs to be taken with this comparison. Importantly, in your case you chose, albeit fairly spontaneously and without thought, to continue a dispute and to vent your anger by the throwing of a very large and heavy object. What you did was extremely serious and it must be so regarded by this court.
The victim impact statement to which I have referred constitutes a powerful reminder, if one were ever needed (and I trust that it would not be) of the pain and damage which such behaviour causes to so many in our society.
Consistent with the application of other relevant sentencing principles, the courts must through the sentences which they impose endeavour to deter those who may be minded to engage in aggressive behaviour of this kind. Further, they must make clear their denunciation of such conduct, indicating to those who act in this way that it will simply not be tolerated. Nevertheless, each case and each offender must be considered in the light cast by all of the circumstances and considerations applicable to the specific offence and the individual concerned.
You, as I have earlier mentioned, are a young man now aged 23 years and have hitherto, apart from the problems associated with the abuse of alcohol, conducted yourself as a person of good character. You have been actively involved in swimming activities for a number of years, have demonstrated a capacity for disciplined behaviour and have gained the respect of those with whom you have been associated as an athlete, a team member, and by reason of your preparedness to assist young club members. You have also been involved in the organization of a swimming group for disabled persons in the district and have given generously of your time in that activity.
I have been informed, and accept, that you are extremely remorseful for what you have done and that you have not consumed any intoxicating liquor since that night. Your counsel has informed me, and I accept, that you were prepared to plead guilty to manslaughter at a relatively early stage after your arrest. That must also be taken into account in your favour. You have, however, had to face the prospect of a trial for murder for over 12 months before your acquittal to that charge. I have little doubt that the enormity of what you have done, not only to the deceased but to his family and your own family and to many other people who were involved with both the deceased and yourself have been present in your mind much of that time. Your prospects of rehabilitation are, in my view, very good. You have substantially completed a plumbing apprenticeship, a trade to which you may be able to return. You have a strong family and social network who are prepared to support and assist you and I consider that it is relatively unlikely that you will ever appear again in a criminal court.
As I remarked in the course of discussion, there are no victors in this situation to which a number of young men, all apparently decent and all affected by liquor, have contributed. In this category I include Adam Stone, whose driving on that particular night was at least problematic; Ben Allen, who encouraged you not only at the time of the nightclub incident, but obviously afterwards; the deceased who, grossly affected by liquor, threw a stubbie from the vehicle in an irresponsible way, and of course you.
During the course of the proceedings I have been mindful of the distinct possibility that had Mr Johnson-Boe struck a member of your group on the head with the stubbie which he threw, he may have been facing this court in relation to the same offence. That possibility I think ultimately serves to emphasize the importance of general deterrence as a sentencing consideration in such cases.
Finally, I have had regard to the sentences handed down by the courts for manslaughter over recent years, bearing in mind that they can provide only limited assistance in an individual case. There have been submissions made to me with respect to other incidents involving rocks on highways. However, I think that it would be inappropriate to compare the situation with which this court is confronted with those that have arisen in those separate situations. I have of course had regard to the purposes for which sentences may be imposed as set out in the Sentencing Act and the guidelines which must be followed by sentencers enumerated in s.5 of that Act.
I have been very troubled about this particular matter. No sentence that I impose can ever restore the life of that young man. No penalty which I hand down will remove the pain that you have created for others. Yet, also, I sit here facing a young person who otherwise has been of good character and with excellent prospects of rehabilitation. As I remarked, there are no winners in these situations, and ironically that even includes the judge.
In the event, I have arrived at the conclusion that the proper exercise of sentence discretion requires the imposition of an immediately effective term of imprisonment. You are sentenced to imprisonment for a period of four years and I fix a non-parole period of two years. I declare that the period of 91 days which you have undergone as pre-sentence detention be reckoned as having been served under the sentence hereby imposed and I direct that this declaration and its details be recorded in the records of the court.
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