R v Furlan
[2014] VSC 361
•14 August 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL LAW DIVISION
No. 0113 of 2013
Between:
| THE QUEEN | |
| and | |
| JORDAN FURLAN | Accused |
---
JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7, 11-14, 17-20, 24-28 & 31 March & 1 April 2014 (trial); 27 June 2014 (plea); and 1 August 2014 (sentence adjourned) | |
DATE OF SENTENCE: | 14 August 2014 | |
CASE MAY BE CITED AS: | R v Furlan | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 361 | |
---
CRIMINAL LAW – Sentence following trial – Recklessly causing serious injury – Assault by 46-year-old accused on 74-year-old de facto father-in-law – Complainant ultimately died of complications in hospital six weeks later – Accused acquitted of manslaughter and intentionally causing serious injury but found guilty of recklessly causing serious injury – Spontaneous incident preceded by complainant striking and attempting to strike accused with baseball bat – Accused flipped complainant onto street and then knelt on his chest and placed forearm across his throat – Complainant suffered broken ribs, substantial impairment of breathing, unconsciousness and pain – Disputed sentencing facts – Whether accused also kicked complainant while defenceless on the ground – Accused had prior convictions for violence, including a conviction for recklessly causing serious injury resulting in immediate gaol – Effects of accused’s acquired brain injury reduced moral culpability and will make gaol more burdensome – Delay of 18 months in charging – Accused’s father died on morning of proposed sentence – Sentence adjourned to allow accused a period of grieving and attendance at funeral – Sentence of three-and-a-half years’ gaol with non-parole period of 18 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Kidd SC with Ms F Dalziel | Office of Public Prosecutions |
| For the Accused | Mr J Desmond | James Dowsley & Associates |
HIS HONOUR:
Introduction
Following a trial in this Court, on 1 April 2014, a jury acquitted Jordan Furlan of the manslaughter of, and the alternative of intentionally causing serious injury to, his 74-year-old de facto father-in-law Geoffrey Kilburn, but found him guilty of the further alternative of recklessly causing serious injury.
On 27 June 2014, I heard a plea in mitigation. The facts of the offending were disputed in part. Thus, it falls to me to resolve that dispute, consistently with the jury’s verdicts, before imposing sentence. Accordingly, I shall summarize the more important parts of the evidence before addressing the submissions of the parties and announcing my conclusions on the disputed facts. Then I shall turn to the other matters raised on the plea before imposing sentence.
Summary of evidence
On the evening of 18 May 2011, Mr Furlan (who was then aged 46) walked from his residence at Homer Avenue in Croydon to a house nearby in Eastfield Road, which was the residence of his de facto mother-in-law Judith Kilburn. On his arrival, Mr Furlan’s eldest daughter Bianca Furlan (then aged 22) was there, seated in her car in the driveway. Mrs Kilburn asked Mr Furlan to leave. She feigned a call to police. Bianca asked her father why he was there. He indicated he was looking for his younger children. (He later explained to police that he was concerned to check on their safety because of an unrelated incident involving others.) Bianca told him they were not there. Mrs Kilburn told him to leave again. He said he was not causing any problems and then walked off.
Bianca immediately drove to her grandfather Mr Kilburn’s house at Wallara Crescent,[1] which also was nearby, as she suspected that was where her father was headed. (There had been some family tensions between Mr Furlan and his de facto partner Melissa Kilburn. They had separated recently, and Melissa and had moved with her three younger children to live with her father, Mr Kilburn. Hence Bianca’s concern.) Upon arrival, Bianca let herself in, as she had a key to the house. She saw that Mr Kilburn was there and that her three younger sisters were in bed. She told Mr Kilburn that her father was on his way over. She also rang her mother, who was out, and told her the same, and that Mr Furlan may have been drinking.
[1]Mr and Mrs Kilburn lived in different premises, as they had separated some months earlier.
Shortly afterwards, Mr Furlan arrived at Mr Kilburn’s home. Bianca and Mr Kilburn came to the door. Mr Kilburn was armed with a metal baseball bat. He told Mr Furlan to “fuck off and get off my property”. Mr Furlan, it was alleged, said he could “take him on with [his] pinkie finger”. At some point, Mr Kilburn said, “Let me at him.” On the prosecution case, Mr Kilburn pushed Mr Furlan in the chest with butt of the bat. (Mr Furlan later told police that, before he could ask what was happening, he was hit in the eye with the butt of a bat.) Mr Furlan backpedalled onto the nature strip and then onto the street. Mr Kilburn pursued him and attempted a further blow or blows with the bat, which Mr Furlan blocked. (Mr Furlan later showed police a mark on his forearm where he had been struck.) Bianca also gave evidence that Mr Furlan and Mr Kilburn may have been swinging at each other around this time but she could not say whether any blows actually landed. At some stage, Mr Furlan disarmed Mr Kilburn. Bianca then took the bat from her father (or, on his account, he handed it to her).
While there was some dispute about what occurred next, the prosecution case was as follows: Mr Furlan then flipped Mr Kilburn over his shoulder and onto his back onto the road, heavily. (Mr Furlan described this as Mr Kilburn losing balance in the struggle and his taking advantage of that fact to take him to the ground.) Mr Kilburn was winded. Mr Furlan then knelt on Mr Kilburn’s chest and held his forearm across his neck, which restricted his breathing. He lost consciousness briefly. Bianca was screaming at Mr Furlan to stop. (Mr Furlan told police that he told Mr Kilburn he would not let him up until he settled down. He said he acted in self-defence and in an attempt to control the situation.) Bianca said that Mr Furlan then grabbed Mr Kilburn by the collar and dragged him in a semi-circle before kicking him hard, once, to the chest. (Mr Furlan denied this.) He then left.
Soon afterwards, Mr Kilburn sat up on the kerb. Initially, it appeared he had suffered only scrapes and bruises and that he was perhaps a bit shaken up. By this time, Bianca had rung Triple-0. She told the operator that her father just assaulted her grandfather. She did not think he needed an ambulance. She explained that she had possession of the baseball bat. She also said that “it’s both their faults; they’re fucking idiots”. There was no mention of dragging and kicking.
Also during the Triple-0 call, Bianca explained that her mother, another person and her father arrived in a car. Melissa Kilburn later gave evidence that she and a friend were driving to the area when they came across Mr Furlan. Melissa noticed that Mr Furlan’s eye was injured. (Photographs showing an injury to Mr Furlan’s eye were also in evidence at trial.) He got into the car and travelled with them back to the scene of the incident. There was evidence that Mr Furlan got out of the car and was verbally aggressive towards Mr Kilburn. He returned to the car and they left.
While, initially, Mr Kilburn appeared not to be badly injured, after he complained of chest pain, it was thought necessary to call an ambulance. Eventually, he was taken to hospital, where he spent the next six weeks. X-rays taken the next morning were thought to show two broken ribs. A few days later, a CT scan revealed a further three rib fractures. Soon afterwards, Mr Kilburn suffered complications and ended up having bowel surgery, twice. He developed serious infections and other afflictions. On 29 June 2011, Mr Kilburn died in hospital.
Several medical experts, including a forensic pathologist and a radiology expert, were called at trial. A post-mortem CT scan showed an additional five rib fractures, bringing the total observed to ten. The rib fractures to the rear of the chest could well have been caused by Mr Kilburn being flipped onto his back but were very unlikely to be caused by the kneeling. The fractures to the front ribs could well have been caused by the kneeling but were very unlikely to be caused by the flip. A kick might have caused a broken rib or ribs but it could not account for all of them. There was no evidence of external bruising or scraping of the chest that might be expected to result from a kick. On the other hand, a kick would not necessarily leave a mark; or any such sign may have been missed in the early stages of Mr Kilburn’s hospitalization.
The prosecution case on causation of death included that the broken ribs predisposed Mr Kilburn to respiratory and renal failure and a degree of sepsis, which led to an acute pseudo large bowel obstruction, which in turn led to a bowel perforation and related serious infection, which necessitated a laparotomy and removal of part of the large bowel; after which the surgical stapling of the bowel broke apart, which caused further infection, which in turn necessitated another operation and the insertion of a colostomy bag, after which Mr Kilburn’s condition deteriorated to the point that he ultimately died as a result of a cardio-respiratory arrest from which he could not be resuscitated.
The issues at trial and the meaning of the jury’s verdicts
There were several issues at trial. On the charge of manslaughter, causation of death, dangerousness, self-defence and the contemporaneity of all elements were each put in issue. On the charges of intentionally causing serious injury and recklessly causing serious injury, intention, recklessness, serious injury, self-defence and the contemporaneity of all elements were also each in issue. The further alternatives of intentionally causing injury and recklessly causing injury were also left to the jury. Among the factual disputes at trial and on the plea was whether Mr Furlan dragged and kicked Mr Kilburn.
Mr Kidd SC and Ms Dalziel, who appeared for the Director, and Mr Desmond, who appeared for Mr Furlan, made written and oral submissions on the meaning of the jury’s verdicts and on the factual basis on which I must or should sentence. I was very much assisted by those submissions.
While the acquittal on manslaughter could have resulted from a lack of satisfaction that the accused’s acts caused death, the verdict might reasonably be explained additionally or alternatively by a failure to exclude self-defence up to and including the flipping of Mr Kilburn onto the road. This is because all of the rib fractures in combination – and none in isolation – were relied on as causative of death and yet some of those fractures are very likely to have been effected by the flipping onto the road, in respect of which the defence case on self-defence was relatively strong, whereas other rib fractures are very likely to have been caused by the kneeling, in respect of which self-defence was a less promising defence, and perhaps by the kicking, in respect of which self-defence could not sensibly apply.
In order to avoid Mr Furlan being sentenced upon a basis which might be inconsistent with the jury’s acquittal of manslaughter, Mr Kidd conceded that Mr Furlan should be sentenced upon the basis that self-defence was not excluded up to and including the act of flipping Mr Kilburn onto the road. Mr Desmond embraced that concession. In my view, the concession was sound and I shall act upon it.
The same reasoning compels the view that I should sentence on the basis that the jury did not accept the Director’s broader case on recklessly causing serious injury. The broader case was that all of the acts – those performed before, during and after the flip – caused injuries amounting to serious injury and were committed without a belief, on reasonable grounds, in the need for self-defence.
That leaves the Director’s narrower case on serious injury. The narrower case relied on all of the behaviour after the flip – namely, the kneeling, the choking and the kick, all when Mr Kilburn was on his back on the ground – as causing injuries of sufficient severity to amount to serious injury and as being committed without any belief in the need for self-defence. Those injuries comprised the five fractures to the front ribs (which alone could amount to serious injury), the impairment of breathing, unconsciousness and pain. Importantly, the narrower case included the kick. This was where the parties began to part ways.
Mr Kidd submitted that, while it was theoretically possible for the jury to have convicted of recklessly causing serious injury without acceptance of the evidence of the kick, such a verdict was highly improbable. Mr Desmond submitted – correctly, in my view – that my directions to the jury allowed them to convict of recklessly causing serious injury without reliance on the kick. The jury could have convicted of that offence by, for example, accepting that the kneeling caused broken ribs and the choking caused impairment of breathing and unconsciousness without accepting that the kicking incident occurred. Thus, depending on my own view of the facts, it is open to me to sentence, consistently with the jury’s verdicts, on the basis either that the kick did occur or that it did not occur. I shall return to this issue shortly.
Conclusions on the disputed facts
There were several other factual issues requiring resolution. I shall deal with each in turn. I have applied the criminal standard of proof when considering matters that might be adverse to Mr Furlan.
First, all counsel accept, as I do, that the jury’s verdicts imply that, after Mr Kilburn was flipped onto the ground, Mr Furlan did not act in self-defence.
Second, I accept the Director’s concession that, instead, Mr Furlan’s actions thereafter were motivated, at least in part, by the provocative behaviour of Mr Kilburn in assaulting Mr Furlan with the baseball bat. Equally, I accept that the mitigatory impact of that provocation is moderated by the fact that Mr Furlan knew he was not welcome at Mr Kilburn’s house and that he might well have expected a physical confrontation, particularly given that his case (supported by evidence of Melissa Kilburn on this point) was that Mr Kilburn had pushed him off his front step on another occasion in the recent past. Further, there was evidence, which I accept, that there was an element of taunting by Mr Furlan towards Mr Kilburn, at least in the early stages of the confrontation. But the moderation of provocation is offset somewhat by the evidence, which I also accept, that Mr Furlan attended the premises looking for his children, about whom he was concerned.
Third, I also accept that Mr Furlan’s actions in kneeling on Mr Kilburn and placing his arm across his neck initially involved, in part, a belief in the need for self-defence, but that that belief was not based on reasonable grounds. In other words, there was an element of what might be described as excessive self-defence in those initial actions. It seems to me that, in the heat of the moment after the flip, Mr Furlan might well have thought it necessary to keep Mr Kilburn down. After all, Mr Kilburn had come at him with a baseball bat and had continued that behaviour out onto the street. But a belief in the need to kneel on his chest and place his forearm across his throat, at least in the manner in which he did those things, cannot have been based on reasonable grounds, as the jury’s verdict implies. By that point, Mr Kilburn had been disarmed and was on his back, winded and harmless.
Fourth, the conclusion as to excessive self-defence operating initially is reinforced by the following consideration. There was a conflict in the evidence as to whether Mr Kilburn, when at his front door, poked Mr Furlan in the chest or in the eye with the butt of the baseball bat. Bianca was adamant that it was in the chest. Mr Furlan was adamant it was in his eye. Melissa Kilburn noticed an injury to Mr Furlan’s eye when he was in the car. Photographs taken soon afterwards showed an injury to his eye that could have been caused by being struck with the butt of a baseball bat. During the trial and on the plea, Mr Kidd accepted that the injury to the eye must have occurred at some point during the altercation before Mr Kilburn went to the ground, despite the fact that Mr Furlan did not claim any such blow struck him in the eye other than at the front door. I am not able to resolve this dispute. In a sense, nothing turns on it, since, even on the prosecution case, Mr Kilburn used the bat aggressively at the door and again when out on the nature strip or the road. I think the fairest way to deal with the matter is to record that I cannot exclude the reasonable possibility that, in addition to poking him in the chest with the bat at the door and swinging the bat at him out on the nature strip or the road, Mr Kilburn struck Mr Furlan in the eye with the bat at some point during the altercation before he was taken to the ground. That, in turn, bolsters the conclusion that Mr Furlan may have been acting in excessive self-defence in the initial stages after flipping Mr Kilburn to the ground.
Fifth, I am satisfied that the foregoing two conclusions are also more consistent with the jury’s decision to acquit of intentionally causing serious injury and to convict of recklessly causing serious injury. Mr Furlan was in a heightened state of agitation given the struggle he had just been through up to and including the flip. So, rather than meaning to cause serious injury at that point, which state of mind the verdict necessarily rejects, Mr Furlan acted recklessly – i.e. he was aware that it was probable that, in acting as he did, he would cause serious injury.
Sixth, Bianca estimated that Mr Furlan had his forearm across Mr Kilburn’s throat for about three minutes. It may well have seemed like three minutes to her, given the frightening spectacle she witnessed. In my view, however, it cannot have been anything like that period of time; otherwise Mr Kilburn would have been suffocated to death. That said, I am satisfied that Mr Furlan did have his forearm on Mr Kilburn’s throat for more than a fleeting period, and certainly long enough to cause a brief period of unconsciousness. I am also satisfied that Mr Furlan had his knee on Mr Kilburn’s chest for a similar period.
Seventh, I am satisfied that the kneeling caused broken ribs and pain and that the forearm across the neck caused pain, substantial impairment of breathing and unconsciousness. I am not satisfied that the kneeling contributed to all of the ten broken ribs. Rather, as the Director accepts, the broken ribs at the rear of the chest are very likely to have been caused by the flip to the ground, which, it is also accepted, might have been accompanied by a belief, on reasonable grounds, in the need for self-defence. Instead, the Director relies on the five broken ribs at the front of the chest. Mr Desmond submitted I could not be so satisfied on the evidence. He submitted that I could only be satisfied that there were “some” rib fractures. I do not agree. While there were different numbers of broken ribs observed at different points by medical experts, I am satisfied, particularly having regard to the evidence of the radiologist Dr O’Donnell, that there were five broken ribs at the front of the chest. Further, I am satisfied by the evidence generally that the kneeling caused those broken ribs. In any event, whether two, three, five or “some” ribs were broken by the kneeling, the level of serious injury caused by Mr Furlan is, to my way of thinking, much the same.
Eighth, I am not satisfied that Mr Furlan foresaw those precise injuries. All that can be said is that he was aware that, in acting as he did, serious injury was a probable result.
Ninth, I am satisfied that, after kneeling on his chest and putting his forearm across his throat, Mr Furlan dragged Mr Kilburn by the collar and then kicked him hard once to the chest area. I accept Bianca’s evidence on this issue despite the absence of any observable external injury to the chest, despite the fact that she failed to mention the kicking when making the Triple-0 call, despite any evidence of grazing on Mr Kilburn’s heels or his neck and despite Mr Furlan’s denial in his police interview. Grazing would not necessarily be expected on either the neck (from grabbing the collar) or the heels (from the dragging). The dragging was only brief. The medical evidence allowed that the kicking could have occurred without any observable external injury to the chest. The failure to mention the kicking in the Triple-0 call is neither here nor there. Bianca was reporting an assault in stressful circumstances. I would not have expected her to report every detail, even a significant detail like the kicking. It was only shortly afterwards that she made a statement which included an account of the dragging and kicking. Having observed her give evidence for several hours and having observed Mr Furlan’s interview, I am satisfied that Bianca was telling the truth and was accurate on this issue and that Mr Furlan’s denial should be rejected.
Mr Desmond also submitted that the jury would not have acquitted of intentionally causing serious injury if they had found that Mr Furlan delivered the kick. That is not necessarily so. There are several possibilities that are consistent with both the verdicts delivered and acceptance of the occurrence of the kick. For example, the jury might have thought that the kick, while a deliberate act, was delivered without an intention to cause serious injury but with recklessness as to serious injury. Or they might have thought (correctly) that, even if the kick was accompanied by an intention to cause serious injury, it would be wrong to convict of that offence if they were not satisfied that the kick itself caused serious injury (such as broken ribs) and they were only satisfied of recklessness in respect of the kneeling and choking and their associated injuries.
Ninth, I am not satisfied that the kick caused any broken ribs, but I am satisfied it would have caused pain.
Tenth, I am satisfied the dragging and kicking was not motivated by any excessive self-defence. Rather, those acts were motivated in part by the provocative behaviour of Mr Kilburn and in part by a desire to punish him.
Victim impact statements
I turn now to the victim impact statements. Five such statements were tendered: one from Mr Kilburn’s wife Judith Kilburn; three from his daughters Melissa Kilburn, Fiona Kilburn and Sally-Anne Evans; and one from his sister Jan Margaret Ham. Ms Dalziel also read from parts of three of those statements. They are moving documents. It is plain that Mr Kilburn’s family found it very difficult seeing their husband, father or brother unwell and in hospital.
As Mr Kidd and Ms Dalziel quite properly reminded me, when considering those victim impact statements, I must also have regard to the fact that I am sentencing Mr Furlan for recklessly causing serious injury, and not for any offence involving the death of Mr Kilburn. All I can do in respect of Mr Kilburn’s death is, as one human being to another, offer my sympathy to his family. And I do. But the law is that I must not sentence Mr Furlan in any way for the fact that Mr Kilburn died following this incident. And I do not. I may only take into account the impact on Mr Kilburn’s family as a result of the offence of recklessly causing serious injury. It is of course difficult to separate the terrible grief Mr Kilburn’s family feel as a result of his death from the impact on them as a result of the assault upon him. But I have done my best to do so.
Nature and gravity of the offence
I turn now to the nature and gravity of the offence.
Recklessly causing serious injury is, by definition, a relatively serious offence. It involves recklessly causing another person serious injury and carries a maximum penalty of 15 years’ imprisonment.[2] That said, the offence is one that can vary a great deal in seriousness. The charge can be, and often is, heard summarily in the Magistrates’ Court, where the maximum sentence that may be imposed is two years’ imprisonment.[3] In fact, before Mr Kilburn died, Mr Furlan had been charged with recklessly causing serious injury (and several lesser alternative offences) and the matter was listed in the summary stream of the Magistrates’ Court. After Mr Kilburn died, the charges were withdrawn pending the filing of new charges. Almost 18 months later, Mr Furlan was charged with manslaughter. This meant the case, including the alternative of recklessly causing serious injury, had to go by way of committal proceeding in the Magistrates’ Court and then come to this Court for trial.
[2]See s 17 of the Crimes Act 1958 (Vic).
[3]See s 113 of the Sentencing Act 1991 (Vic).
Mr Kidd submitted that the injuries were in the mid-range of serious injury. Mr Desmond submitted the injuries were at the middle to lower end of the spectrum. While some might say that rib fractures are not particularly serious injuries, the evidence at trial was that multiple rib fractures in a 74-year-old man are associated with a significant risk of disease and mortality. A period of hospitalization was required, although I recognize that I am not to sentence Mr Furlan for the complications that followed. Further, there was the pain associated with such injuries, as well as the substantial impairment of breathing and unconsciousness resulting from the forearm across the neck. It is true that less grave and much graver and more debilitating examples of serious injury are encountered in practice. In so far as labels matter, I would place the injuries here around the mid-range of serious injury.
I accept Mr Desmond’s submission that the offence was spontaneous. Further, as I have said earlier, the offence was committed in response to provocative violence with a baseball bat by Mr Kilburn and, at least in part and initially, in circumstances of excessive self-defence. No weapon was used by Mr Furlan and the assault was of relatively short duration.
In my view, however, the gravity of the offence is significantly increased by the fact that Mr Furlan gratuitously kicked Mr Kilburn while he was unarmed, defenceless and on his back. Mr Furlan was 46, fit, rangy and, it appears, a good deal more powerful than Mr Kilburn, who was 74 and not in the best condition. In those circumstances, the kicking was a disgraceful and cowardly thing to do. That one spiteful act by Mr Furlan, although it did not cause serious injury itself, made the episode of violence all the more serious. And all in front of his daughter, who was screaming at him to stop.
Balancing all matters, I regard this particular instance of the offence as falling above the mid-range of seriousness for the offence of recklessly causing serious injury.
Prior and subsequent criminal history
I turn now to Mr Furlan’s criminal history.
Mr Furlan has a prior criminal history for violence. In 1999, following a trial in the County Court, Mr Furlan (who was then aged 35) was convicted of recklessly causing serious injury. I was provided with the judge’s reasons for sentence. The incident occurred in 1997. Mr Furlan and his brother assaulted another man over the affections of Melissa Kilburn. They punched and kicked the man while he was lying on his bed in his own home. He suffered a ruptured spleen and at least one broken rib. The judge, who is very experienced in criminal matters, described the offence as a serious example of recklessly causing serious injury. His Honour imposed a sentence of 18 months’ gaol, with 12 months to serve and six months suspended.
In 2006, Mr Furlan (at 41) was convicted in the Magistrates’ Court of recklessly causing injury, assault by kicking, a driving offence and failing to answer bail. He punched and kicked Melissa Kilburn and then dragged her out of bed to the front lawn, where he continued to assault her. After she broke free, he pursued her and assaulted her again. The magistrate imposed a sentence of three months’ gaol to be served by way of an intensive correction order. Later (after Mr Furlan suffered a cardiac arrest and related brain injury, to which I shall return shortly), that sentence was varied to a suspended sentence.
Mr Furlan also has numerous prior convictions for drugs, dishonesty, driving and weapons offences. He has received sentences ranging from fines to community based orders to suspended sentences. He has also breached some of those orders.
Mr Desmond quite properly advised me of a subsequent criminal conviction. On a date that is unclear on the materials, Mr Furlan assaulted his mother, who is 29 years his elder. Mr Furlan was charged with recklessly causing injury and, on 24 January 2012, was sentenced in the Magistrates’ Court to two months’ gaol. He appealed to the County Court. Despite his mother signing a statement of no complaint, the appeal proceeded. The sentence, however, was varied to two months’ gaol wholly suspended for 12 months.
In my view, Mr Furlan’s prior history for violence adds to the weight to be accorded to specific deterrence. It also illuminates his moral culpability for the present offence. While the 1997 incident occurred 17 years ago, and therefore might be described as stale, it involved a serious offence with significant consequences for the complainant. Mr Furlan knows from experience what harm his violence can do to others. He has been gaoled before. Yet he has offended in a serious way again. He has kicked others in a criminal and craven way before, twice. I also regard the subsequent conviction for violence against his mother as relevant to Mr Furlan’s prospects of rehabilitation.
Mitigating factors
I turn now to the factors urged in mitigation.
Remorse
Mr Desmond submitted that, despite his plea of not guilty and his maintaining the view that he acted in self-defence throughout, I should find that Mr Furlan is remorseful that the whole event occurred, including the death of Mr Kilburn.
I accept that Mr Furlan wishes the whole event did not occur and that he is sad that Mr Kilburn ultimately died. But I am not satisfied that he is remorseful for the offence of which he stands convicted. To find that he is remorseful for that behaviour would be inconsistent with his view that he acted in self-defence and his denial of the kick.
Acquired brain injury and moral culpability
In 2006, Mr Furlan suffered a cardiac arrest which led to an hypoxic brain injury. He spent four months in hospital followed by four months in the acquired brain injury (“ABI”) unit at the Royal Talbot. He had to learn to read and write again. He has been on a disability pension ever since. (Previously, after leaving school in Year 9, he had worked in various jobs, including in welding and bricklaying.) State Trustees were appointed to manage his affairs. Not until 2011 did he regain rights over his own financial affairs.
Mr Desmond tendered a report of neuropsychologist Linda Williamson. She opines that Mr Furlan has a low/average range of intellectual functioning; mild to moderate difficulties with planning and organization; is impulsive and demonstrates poor self-monitoring; but does not demonstrate difficulties with inhibition of automatic response tendencies or cognitive flexibility. Ms Williamson considers that he has a moderate brain injury with residual effects on his processing speed, high level attention and executive functions. She referred to a 2011 neuropsychological report by Dr Bradfield, which was also tendered, but it did not add anything of current relevance.
Mr Desmond also tendered a report by forensic psychologist Carla Lechner. Ms Lechner examined Mr Furlan and had seen the reports of Ms Williamson and Dr Bradfield. She also gave viva voce evidence on the plea. Ms Lechner opined inter alia that, because of the effects of the ABI, at the time of the offending, Mr Furlan’s ability to exercise appropriate judgment would have been adversely affected; his ability to make calm and rational choices and/or to think clearly would have been affected; he would have been disinhibited and would not have considered his own actions to have been “over the top”; and, given the speed of the event, his ability to appreciate the wrongfulness of the conduct would have been compromised because of the impairment of his problem-solving, judgment and cognitive skills.
Mr Desmond’s submission was that, in light of the evidence about the effects of Mr Furlan’s ABI on his impulsivity and judgment at the time of the offending, his moral culpability should be regarded as being reduced.
Mr Kidd accepted that Ms Lechner’s evidence established a causal connection between Mr Furlan’s affliction and the offending, so that his moral culpability was reduced, albeit only to a moderate degree, at best.
I accept that Mr Furlan’s moral culpability was reduced, but only to a moderate degree, because his judgment was impaired as a result of his ABI.
Mr Kidd also submitted, however, that I should decline to act on the view that Mr Furlan would not have considered his actions “over the top”, because the verdict necessarily implies that he foresaw that serious injury was probable. I accept that submission.
Acquired brain injury makes imprisonment more burdensome
Ms Lechner was also of the view that Mr Furlan’s ABI would make prison significantly more difficult for him. She opined it was likely that he would not be able to pick up the nuances of gaol politics and the need to think quickly and stay out of potential trouble.
While I am of course no expert, I should add that Mr Furlan appeared from the record of interview (which he attended with an independent third person, because of his ABI status) to have an unusual manner – which may well add to the risk about which Ms Lechner opined.
Mr Kidd accepted that I should act on Ms Lechner’s evidence in this regard. I accept that concession, although I think this is a mitigating factor of moderate weight.
Prospects of rehabilitation
I turn now to Mr Furlan’s prospects of rehabilitation.
On the one hand, given Mr Furlan’s criminal history, particularly for violence, and given the absence of remorse for the offence of which he stands convicted, his prospects of rehabilitation might be thought to be bleak. Added to that is the fact that his ABI is permanent, which is the opinion of Ms Lechner; so that Mr Furlan’s prospects of rehabilitation might be considered all the weaker because his impulsivity and poor judgment resulting from the ABI are likely to remain with him permanently.
On the other hand, there are several matters that cause me to find that Mr Furlan’s prospects of rehabilitation are at least reasonable – not good, very good or excellent, but at least reasonable:
a) First, I accept that Mr Furlan has shown determination to learn to read and write again and gain independence after sustaining his ABI. That must have been a difficult thing to do at the age of 42. He has worked to obtain various certificates, including his driver’s licence, power boat licence and a high risk work licence. These achievements show that, despite his injury, Mr Furlan is capable of learning and improving and that he has the will to do so.
b) Secondly, the numerous references tendered by Mr Desmond depict a man who is helpful to others, community-minded and cares deeply for friends and family. He has been of particular comfort and assistance to his partner Helen Zambelis and his father Giordano Furlan in recent years when they have both had their own very serious medical difficulties. These are matters that go his great credit.
c) Thirdly, while Mr Furlan has had long history of illicit drug use and alcohol abuse, his pharmacist reports that he has done well on the methadone programme for over five years now. Mr Furlan turned to drugs and alcohol at a relatively early age in the wake of his parents’ separation. Again, it is to his great credit that he has performed well on the methadone programme for such a long period.
d) Fourthly, Mr Furlan has something in particular to work towards – and that is to be able to see and have a relationship with his younger children. He has not been allowed to see them since being charged. I accept that that is a hardship which he finds particularly difficult to endure. He is hopeful that will change.
e) Fifthly, the references show Mr Furlan has the support of his partner, several family members and friends. I was also impressed by the fact that family and/or friends attended the trial and the plea to support Mr Furlan.
f) Finally, I would expect that, as a man who is about to turn 50, Mr Furlan has had enough of criminal offending in general and violence in particular. Or, at least, that is my hope.
Rehabilitation is one of the great aims of sentencing. While Mr Furlan’s prospects of rehabilitation are only reasonable, it is in both his and the community’s interests that those prospects be maximized.
Delay
The offence occurred on 18 May 2011. As I noted earlier, Mr Furlan was charged initially with recklessly causing serious injury (and lesser alternatives) and the matter was listed in the summary stream of the Magistrates’ Court. After Mr Kilburn died on 29 June 2011, those charges were withdrawn pending the filing of new charges. Then, almost 18 months later, on 21 December 2012, Mr Furlan was required to appear at a filing hearing in the Magistrates’ Court charged with manslaughter. The committal hearing was completed on 21 June 2013. The trial concluded with verdicts on 1 April 2014. Mr Furlan was released on bail pending the plea in mitigation. The plea was heard on 27 June 2014, after which Mr Furlan was remanded in custody to appear for sentence on 1 August 2014.
On the morning of 1 August, the matter was mentioned in the absence of Mr Furlan. I was advised by Mr Desmond that Mr Furlan’s father died earlier that morning but that he had not been told yet. Arrangements were made so that, despite being in custody, Mr Furlan could be advised of his father’s passing in private by his family here at the Court. The matter was then called on in Mr Furlan’s presence and adjourned for sentence to today, 14 August 2014. While many – including Mr Kilburn’s family – had an interest in the sentence proceeding on 1 August, I took the view that to be told that his father had died and then to be sentenced the same day would be crushing for Mr Furlan. Accordingly, I adjourned the matter for about two weeks to allow Mr Furlan a period of grieving and to attend his father’s funeral before being sentenced.
The 18-month delay before the manslaughter charge was laid is, in my experience, very unusual. Further, to have had such a charge in prospect and then hanging over his head for a combined period of nearly three years before being acquitted, must have placed considerable strain on Mr Furlan. And it is now three years and three months since the incident. It is apparent from some of the references that the long period of uncertainty has weighed heavily upon him.
Further, apart from the subsequent matter involving his mother, Mr Furlan has used the period of delay positively, particularly by caring for his partner and his father through serious illnesses.
I regard the long delay as a substantial mitigating factor in this case.
Death of father and depression
I am also of the view that it must have been particularly difficult for Mr Furlan to have dealt with the death of his father whilst in custody awaiting sentence. The references show that Mr Furlan was close to his father, particularly in recent times when his health had deteriorated. I accept that Mr Furlan will continue to experience sadness over the death of his father, which is likely only to add to the depression which Ms Lechner considered he was suffering (and for which he had been prescribed anti-depressant medication by his general practitioner Dr Drake), which is likely to make his time in gaol time more difficult in the future.
In my view, these are additional matters that moderate the sentence I should otherwise impose.
Sentencing purposes
I turn now to sentencing purposes.
General deterrence, denunciation and just punishment
In my view, general deterrence, just punishment and denunciation are important considerations in the present case. Others in the community should understand that anyone who might be minded to act in the way Mr Furlan did when he assaulted Mr Kilburn, and cause the harm he caused, and to kick another person who is down in such a craven manner, will receive significant and just punishment. The community should also know that the courts will denounce such behaviour. And I do.
Specific deterrence
As I indicated earlier, I regard specific deterrence as an important consideration, particularly given Mr Furlan’s prior offences for violence.
Protection of the community
In my view, the weight to be given to the other sentencing purposes just mentioned will produce a sentence of sufficient severity to protect the community without the need to resort to an additional component in the sentence for community protection.
Rehabilitation
As for rehabilitation, which, as I have said, remains an important consideration, I have sought to fix a sentence that maximizes Mr Furlan’s chances of reform but still pays sufficient heed to the seriousness of the offence and the other sentencing purposes to which I have referred.
Parsimony
Sections 5(3) and (4) of the Sentencing Act 1991 (Vic) reflect the common law principle of parsimony. I have applied this principle and these provisions when considering this case.
Current sentencing practices
In so far as I can determine them, I have had regard to current sentencing practices for recklessly causing serious injury.
Mr Desmond referred to the latest Sentencing Snapshots for these offences. I have also had regard to the reasons delivered and sentences imposed in cases concerning recklessly causing serious injury heard in this Court and the Court of Appeal in recent times.
For the period from 2006-07 to 2012-13, the median gaol term imposed in the higher courts for recklessly causing serious injury was two years and six months; and the average (mean) term ranged from one year and 11 months in 2006-07 to two years and ten months in 2009-10.[4] The Snapshots also show that non-custodial sentences are often imposed for this offence, although the trend appears to be towards gaol sentences being imposed more often.
[4]See Sentencing Advisory Council, Sentencing Snapshot No 126 (June 2012), p 5; Sentencing Snapshot No 157 (June 2014), p 5.
It is almost always difficult usefully to compare sentences imposed in other cases and divine solid information from sentencing statistics. For example, the statistics in the Sentencing Snapshots do not differentiate sentences imposed following pleas of not guilty and those following pleas of guilty. Nor, for that matter, do they differentiate sentences on any other bases that might aggravate or mitigate. Nevertheless, I found these sources of some assistance. In the end, however, because of the limits of that process, I was driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence.
Submissions on sentence
Mr Desmond submitted that I should impose a community correction order (“CCO”). In the alternative, he submitted that, depending upon my resolution of the disputed facts, a CCO combined with a gaol sentence of up to three months would be appropriate.
Mr Kidd submitted that a CCO was not open, whether with or without a three-month gaol sentence, particularly when regard is had to the seriousness of the offence and Mr Furlan’s prior convictions. He submitted that the only appropriate sentence is a term of imprisonment.
I accept Mr Kidd’s submission. An immediate gaol sentence is required; and it must be one of substantial duration.
Matter too serious to be heard in the Magistrates’ Court
As will be apparent from the sentence I am about to impose, I regard this matter as too serious to have been heard summarily in the Magistrates’ Court, given the jurisdictional limit on penalty in that court. Such a course might have been open had there been a plea of guilty to and remorse for the offence of recklessly causing serious injury. But that is not this case.
Of course, Mr Furlan is not to be punished for running a trial. Indeed, he was in an invidious position: Even if he thought he was guilty of recklessly causing serious injury, it is reasonable to have considered that it would have been forensically disadvantageous to plead guilty to such a charge when facing the more serious charges of manslaughter and intentionally causing serious injury. And yet he has been acquitted of those more serious charges, which vindicates his pleas of not guilty in respect of them. But he simply does not enjoy the benefit in mitigation of a plea of guilty to or remorse for the offence of which he stands convicted. Nor does he enjoy the benefit in mitigation of any offer to plead guilty to such an offence.
Ancillary orders
Before announcing sentence, I shall make the ancillary orders sought by the Director.
In particular, pursuant to s 78(1) of the Confiscation Act 1997 (Vic), I order that the items listed in the schedule to the draft disposal order be forfeited to the State and dealt with in the manner spelt out in that draft order.
Further, pursuant to s 464ZF(2) of the Crimes Act 1958 (Vic), I order that Mr Furlan undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30A of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for the placement on the database. If at the time of the request by police for the scraping or sample Mr Furlan does not consent, police may use reasonable force to enable the forensic procedure to be conducted.
Sentence
I turn now to pass sentence.
Balancing all matters as best I can, for recklessly causing serious injury to Mr Kilburn on 18 May 2011, Mr Furlan is convicted and sentenced to three-and-a-half years’ imprisonment. I fix a non-parole period of 18 months.
The non-parole period is short relative to the head sentence. There are two main reasons. First, while the long delay, like all mitigating factors, has affected both the head sentence and the non-parole period, I have given that factor a good deal of extra weight when fixing the non-parole period. In my view, justice requires it. Secondly, the relatively short non-parole period is designed to encourage Mr Furlan to reform in prison by working towards his earliest possible release, and to allow the potential for a longer period of supervision in the community should he be granted parole. As I said earlier, it will redound to the benefit of the community too if Mr Furlan is ultimately rehabilitated. In my view, this sentence maximizes the chances of that occurring while still giving due weight to other sentencing purposes such as deterrence, punishment and denunciation.
Pursuant to s 18 of the Sentencing Act, I declare that 50 days of pre-sentence detention are to be reckoned as already served under the sentence.
0
0