R v Drayton

[2014] VSC 92

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. S CR 2013 0198

THE QUEEN

v

MATTHEW WAYNE DRAYTON

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 FEBRUARY 2014
DATE OF SENTENCE:	18 MARCH 2014
CASE MAY BE CITED AS:	R v DRAYTON
MEDIUM NEUTRAL CITATION:	[2014] VSC 92

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CRIMINAL LAW – Sentence – Verdict of defensive homicide at trial – Single stab wound – Circumstances of defensive belief based on record of interview – Difficulty in assessing proportionality between threat and response – Strong prospects of rehabilitation – Sentenced to 9 years’ imprisonment, non-parole period of 6 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Campbell Thomson	Mr C Hyland, Solicitor for Public Prosecutions
For Mr Drayton	Mr Scott Johns	Wightons Lawyers

HIS HONOUR:

1. Matthew Drayton, you were charged with the murder of Robert Colenso at Winchelsea on 15 March 2013. You pleaded not guilty. After a trial lasting 8 days, a jury found you not guilty of that charge but guilty of the alternative charge of defensive homicide. It is now my responsibility to sentence you for that crime. The maximum penalty for defensive homicide is 20 years’ imprisonment.

1. In sentencing you, I must first express my conclusions about the facts relating to the charge upon which you have been convicted. In doing so, I shall apply the relevant principles, namely:

(a)That my sentencing findings must be consistent with the jury’s verdict;

(b)That I must be satisfied, beyond reasonable doubt, of any facts which might be relied on in aggravation of the offence;

(c)That I am required to be satisfied, on the balance of probabilities, of any facts which I take into account in mitigation of the offence.

1. On 21 March 2013, Robert Colenso was found dead in his unit. He had been stabbed in the left side of his chest, over the heart, with a boning knife. The knife was found on the floor in the apartment. Robert Colenso was 57 years of age when he died. You admitted to police that you stabbed him with the knife during the evening of 15 March 2013. There was evidence at your trial that Robert Colenso was addicted to drugs and that on the day, Robert Colenso had consumed alcohol and cannabis. At the trial, the toxicologist and the pathologist estimated that, at the time of his death, Robert Colenso’s blood alcohol content was about 0.2 percent. There was no evidence that the deceased had consumed Oxycontin or other addictive drugs.

1. On 15 March 2013, you went around to Robert Colenso’s unit with a bottle of wine sometime after 9:00 pm. According to your record of interview, you told police that you had a couple of bongs with Robert Colenso which used up his supply of cannabis and you argued with Robert Colenso about whether you should both go to a neighbouring backyard known to Robert Colenso and steal a marijuana plant. That was the deceased’s idea and you said you were not interested.

1. The jury plainly accepted that there was a confrontation between the pair of you. For your part you described to the police a confrontation that immediately followed that argument about going to steal the marijuana plant. You found yourself on the floor with the deceased standing over you pressing a pruning saw into your throat as he exclaimed that he was a warrior and intended to kill you. How the confrontation escalated so dramatically was never satisfactorily explained. You managed to disarm the deceased, essentially by punching him causing him to drop the saw, and you regained your feet. You told police the deceased then picked up a boning knife that was handy and you believed that he was going to kill you with it. You then took the knife from him and stabbed him with it in the left side of his chest. What immediately happened to the knife was not explained to the police. You then punched the deceased three times as hard as you could and left the unit. The knife was found on the floor of the unit by crime scene investigators.

1. Aside from the stab wound which severed an artery from the lungs to the heart, which was the cause of his death, the deceased also had fractures or breaks on both cheeks and in his nose. Dr Lynch said that at least moderate force was required to inflict these wounds. You sustained an injury to your finger, described by Dr Reid as an irregular but semi-circular injury adjacent to the palmer crease where the finger begins. It was an undermined injury that was in appearance consistent with an incised wound inflicted with a sharp, cutting object. You told the police that you suffered that injury when taking the boning knife from the deceased, but there was a competing theory put to the jury that you sustained that injury when your hand slipped forward onto the blade of the boning knife during the act of stabbing the deceased in the chest.

1. The veracity and accuracy of your account to the police was challenged by the prosecution before the jury and there was a basis for the jury to reject it. In particular, your account of the deceased’s use of a pruning saw as the first life threatening attack made upon you was questioned by the prosecution. The prosecution case before the jury was that your account to police of the attack on you with the saw was a lie. No saw was found by crime scene investigators on the floor in the unit where it might be expected if dropped by the deceased during the confrontation. A saw was found under the kitchen sink in its scabbard, but DNA analysis of the sample material swabbed from the blade of the saw identified a mixed DNA profile indicating contributions from at least two people. You were excluded as a contributor to that sample. Dr Reid saw no sign of any injury to your neck when she examined you 5 days later. The prosecution alleged that other statements you made to the police were lies.

1. The prosecution went to the jury on the basis that you were guilty of murder. As I have said, the jury found you not guilty of murder and guilty of defensive homicide. By that verdict, the jury must have determined that you intended at least to cause really serious injury to Robert Colenso. The jury must also have determined that it was at least reasonably possible that you genuinely believed that it was necessary for you to stab Robert Colenso in the chest in self-defence. The verdict of not guilty of murder necessarily means that the jury accepted at least the reasonable possibility that you had a subjective belief in the need to act in self-defence, which was the account you gave. It follows that the jury did not wholly reject the account of the night that you gave to the police, but I am satisfied that the jury must have rejected part of that account.

1. It is not possible to identify with precision what actually occurred in the confrontation between you and the deceased. The consequence is that a judgment about the nature or extent of any perceived threat or the quality of your belief that it was necessary to kill or seriously injure Mr Colenso in order to defend yourself is particularly difficult.

1. Neither the prosecution nor the defence argued that defensive homicide was the proper verdict in this case and it is not easy to reconcile the verdict with some of the evidence. The prosecution case was murder. The defence case bespoke actions carried out in both subjective and objective self-defence. Neither case proposed a hypothesis consistent with the verdict, although when a jury returns a lesser alternative verdict this is not unusual. What I am required to do to determine a proper and just sentence, is properly assess the moral culpability of your actions. As I interpret the jury's findings about your conduct, I ask myself to what extent was your belief in the necessity to act in self-defence as assessed by the jury for reasonableness, considered to cross over the line into unreasonableness. Conduct that has only just crossed the line will be at the lower end of moral culpability for this very serious crime, while a belief that was wholly unreasonable in the circumstances will be conduct that is at the upper end of the range.[1] The cases show that the range of possibilities and circumstances that can arise brings into play the notion of proportionality between the perceived threat or violence and the offender's response to it. In this context, the severity of the attack on the victim is relevant, and so in other cases sustained brutality had attracted a greater sentence than an single strike.[2] 

   [1]Creamer v The Queen (2012) 221 A Crim R 284, 293 [49]–[50], R v McEwan, Robb, and Dambitis [2013] VSCA 329, [114]–[116].

   [2]The Queen v Copeland [2014] VSC 39, [53]–[54].

1. Your counsel submitted that it is likely that the jury, on a simple assessment of your interview, were unable to wholly reject your account of being threatened with a knife to some degree and in some manner, but formed the view that there were not reasonable grounds for you to react in the way you did, to plunge the knife into the deceased’s chest, even though you believed it was necessary to do that to avoid a lethal threat. I am satisfied that the verdict of not guilty of murder means that the jury could not have wholly rejected the account you gave to the police. Beyond that, it is difficult to say what view the jury took of matters such as the pruning saw or the circumstances of the injury to your hand. I accept that the deceased did become aggressive and he did produce the knife. It is difficult to say that the jury accepted your statement to police that you were threatened with the knife in the manner in which you describe it for, as your counsel put it to the jury, that would be self-defence every day of the week. I am satisfied that you did not go to the unit armed with any weapon.

1. Your counsel did not demur from the possibility that in coming to the verdict, the jury could be understood as saying that they considered there were not reasonable grounds for a self-defence belief, either because your reaction was disproportionate in the circumstances, or because you demonstrated sufficient control of the circumstances, bearing in mind the level of intoxication of Mr Colenso, that you disarmed him on perhaps one or two occasions sustaining only an injury to your hand, and that you punched him three times with sufficient force to inflict serious facial injuries. To put it another way, the jury formed the view that because, as you said, you could not believe how easily you got the knife off the deceased, there were not reasonable grounds for you to think that it was necessary to thrust it into his chest.

1. Your counsel submitted that I should not regard the extent to which your self-defence belief crossed over the unreasonableness line as significant. For sentencing purposes, I do not regard your unreasonable belief as wholly unreasonable. I am satisfied that your self-defence belief was disproportionate to the threat that was actually posed to you by Mr Colenso. There were other matters that the jury may have accepted as providing some, but not sufficient, grounds for your belief to not be thought to be wholly unreasonable. Robert Colenso was substantially intoxicated and drug addicted, capable of the quite irrational behaviour described by you to the police. There was, objectively, a clear potential for volatility. The knife must have been produced in the heat of the argument. You were friends with the deceased and must have been surprised by his aggression. The killing occurred on the spur of the moment. Your use of the knife was a single blow and you did not continue to attack the deceased with the knife although he was not killed instantly by the knife. The jury may have accepted that you, however, were neither significantly intoxicated or in any way drug affected. Evidence to that effect was not contested. I am satisfied that the jury concluded that there was an occasion for self-defence up to a point, but not reasonable grounds for the belief that may well have been held that it was necessary to use the knife as you did. 

1. Defensive homicide requires, at the least, an intention to inflict really serious injury and it is a very serious offence. I propose to sentence you on the basis that your response was disproportionate to the perceived threat although the extent of the unreasonableness of your belief in self-defence was modest. I assess your moral culpability in the circumstances as below the middle of the range but above just crossing the line.

1. The seriousness of the offence of defensive homicide lies in the unreasonable loss of a human life that is involved. Your primary victim Mr Colenso, who was apparently your friend, is dead. Your conduct had repercussions for Mr Colenso’s family. I have read victim impact statements provided by his mother June, his brothers Peter and Alan, and his daughter Linden. Each member of his family, in his or her own way, suffered and continues to suffer grief and difficulty coming to terms with their loss and the circumstances in which it occurred. Mr Colenso was a much loved member of his family and his death continues to be keenly felt by all of them. His daughter Linden Moore speaks eloquently, and at length, of her pain and loss and its impact on her. I have taken into account the effect of this terrible crime on Mr Colenso’s family.

1. You were born on 20 April 1989 and you were 23 at the time of the offending. Your youth is significant and I will in due course explain why I think you have good prospects for rehabilitation. Your mother and father separated when you were an infant and you had little contact with your father, aside from one meeting with him when you were about 13. You were raised by your mother in Winchelsea although I am told that you were physically abused and exposed to violence at the hands of a stepfather who was in a relationship with your mother for about 10 years. You clearly have the support of your family and friends. You have enjoyed strong support in your life from your maternal grandparents and your sister.

1. You didn't like school and left Grovedale High School during Year 10. At the age of 15 you started working at the Birregurra Saw Mill. Although you have not received a good education, you have a good work history. At 17, you left the mill to work for West Coast Windows, which is based in Geelong, after you formed a relationship with the foreman’s daughter. There were early signs of maturity. You set up a home with your girlfriend in Belmont and supported the household as the breadwinner. When that relationship ended you found another job as a concreter based in South Geelong, continuing to live independently from your family.

1. In 2009, an accident on a trail bike left you with a shoulder injury that has had a significant impact on your life. It still troubles you. Your shoulder deteriorated gradually to the point where you needed an operation. In the meantime your capacity for work was affected by ongoing pain and occasional dislocation. At these times you needed a week off work to recover from the dislocation. You left your employment to have the operation and recuperate but there was a long wait for it until Dr Conron intervened. In about July 2012, you moved back to Winchelsea with your grandparents and your shoulder operation was in October 2012. You do not believe that your operation was a success. You still have problems following the operation, being unable to raise your left arm above shoulder height. You have experienced a lot of pain. Dr Conron, who described you as a polite and respectful young man, prescribed Oxycontin for your pain after the operation and you still take 20mg twice a day. You are on a waiting list for another operation.

1. Despite these difficulties you have continued to look towards your employment opportunities. Before your operation you took steps to start your own concreting business. You also obtained a heavy rigid licence and a bobcat driver's ticket in case your shoulder has long term consequences for working as a concreter. You have been in custody for nearly a year and your counsel tells me that, despite your shoulder condition, you have worked every working day in custody in the workshop doing metal work. You also seek out such treatment as is available for your shoulder. I accept that even within the gaol system you are trying to deal with your shoulder issues and you are working. This attitude suggests that your prospects of rehabilitation are respectable.

1. I have some continuing concerns though. Your use of Oxycontin approximately 18 months after it was first prescribed, while it may be consistent with enduring high levels of pain, remains a concern. You have admitted to a prior court appearance in the Children’s Court at Geelong. Your offending concerned disorderly conduct as an underage attendee at licenced premises and included a minor assault. You were released without conviction on a good behaviour bond, which you observed. The occasion of your attendance at licensed premises was the same day as the funeral of your friend and was an emotionally charged occasion. Your character witnesses informed me that you have experienced the loss of three of your friends to car accidents or suicide. You are no stranger to grief. In addition you have experienced physical abuse as a boy that was not dealt with when you complained. One of the purposes of imprisonment is to rehabilitate offenders and you will be offered the opportunity of courses, programs and other opportunities to deal with these concerns. I strongly recommend that you take such opportunities for counselling and educative courses as come your way.

1. Your counsel suggested that you have compassion for the loss of life involved in your offending. You have yourself lost friends. You will carry for the rest of your life the fact that you have taken the life of another person, a person who you called a friend. However, I see no evidence of remorse that would mitigate the proper sentence. Rather, your counsel’s submission that you have some compassion gives me greater comfort in the assessment that I make that you can be rehabilitated into a person who may be accepted back into the community. The prosecutor conceded that your prospects of rehabilitation are fair to good, and I think that concession is proper.

1. Bearing in mind your relative youth, the support you receive from your family and friends and your attitude to work and managing your health difficulties, I consider that your rehabilitation is an important objective to be achieved by the sentence I propose to pass on you.

1. That said, the fact remains that in determining the proper sentence for you, the principle of general deterrence remains a significant object of a proper sentence. It is important that the sentence that I impose on you be of sufficient severity to make it clear that persons who contemplate indulging in the type of violent conduct that your jury considered should expect to lose their right to live within society for a substantial period of time.[3] I do not consider that the principles of specific deterrence are particularly significant. I am satisfied that your offending in this case was entirely out of character. You have no history of violent behaviour and I am prepared to discount your prior appearance before the Children’s Court as confined to its own circumstances. I have noted your commitment to your own rehabilitation. I am also satisfied that the circumstances that have brought you before this court, together with the term of imprisonment I will impose, will be sufficient to deter you from re-offending.

   [3]I have referred to the decision of the Court of Appeal in R v McEwan, Robb, and Dambitis [2013] VSCA 329, and to the subsequent sentence in The Queen v Copeland [2014] VSC 39 (11 February 2014) and to the earlier cases of sentencing for defensive homicide both on appeal and in the trial division of the court noted in each decision.

1. Taking those matters into account, and bearing in mind the mitigating circumstances to which I have referred, I sentence you Matthew Wayne Drayton to 9 years' imprisonment. I fix a minimum non-parole period of 6 years. Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that 361[4] days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.

   [4]Up to but not including today.

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