R v Heitanen
[2011] VSC 404
•24 August 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0060 of 2011
| THE QUEEN |
| v |
| GARY HEITANEN |
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JUDGE: | KING J | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 22, 23 August 2011 | |
DATE OF SENTENCE: | 24 August 2011 | |
CASE MAY BE CITED AS: | R v Heitanen | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 404 | |
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One punch Manslaughter – Early Plea – Remorse – Sentence 10 years with a minimum 7 years. Section 6AAA would have been 12 years with 9 year minimum.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown (Plea) (Sentence) | Mr K. Gilligan Mr M. Thackaberry | Office of Public Prosecutions |
| For the Accused (Plea) (Sentence) | Mr S. Robertson Mr H. Middleton | Martin, Irwin & Richards Lawyers Mildura |
HER HONOUR:
Gary Heitanen, you have pleaded guilty to one count of manslaughter being that at Nangiloc on the twenty sixth day of January 2011 you did kill David Rowe.
You are currently 39 years of age. The man you killed, David Rowe, was 40 years of age at the time of his death, having been born in 1970.
You have pleaded guilty to the offence and you indicated that plea at an early stage. You are entitled to and will receive an appropriate and significant reduction in your sentence on the basis of your plea of guilty, the early stage at which you indicated that plea and the matter of remorse to which I shall refer later.
You have a long and unfortunate history in terms of your involvement with the criminal law, your first recorded offences occurring in August of 1990 in Gosford Local Court in NSW. Between then and July of 1991 you had acquired seven court appearances all at that court in relation to either offensive language, possession of a prohibited drug, administering or cultivating of a prohibited drug, and for which you were, on each occasion, fined.
You continued your petty crime with a stealing offence in 1991 for which you received a good behaviour bond and driving whilst unlicensed in 1994. But then in August 1999 at the Wyong Local Court in New South Wales you were convicted of malicious damage, breach of Community Service Order, assault occasioning actual bodily harm and assault for which you received sentences of six months’ periodic detention on each charge to be served concurrently with each other.
Between December 1999 and May 2001 you were involved in some driving licence offences, including while disqualified and larceny for which you received a total of four months’ imprisonment in May of 2001.
On 5 July 2001 at the Wyong Local Court in New South Wales you were convicted of a charge of malicious wounding for which you received 20 months’ imprisonment with a non‑parole period of 15 months. This offence involved the use of a knife by you and a stabbing wound to the chest/abdomen area of the other man, you contested that matter on the basis that you were acting in self defence which was rejected by the court. It is accepted that the person you stabbed very fortunately did not suffer any long term affect as a result of your behaviour.
In May of 2004 at Wyong Local Court in New South Wales you were convicted and fined $500 in respect of three offences, each of them incurring the fine of $500, being using a weapon to prevent lawful arrest, assault occasioning actual bodily harm and damaging property. Whilst the offences themselves sound serious, the penalty imposed indicates that they were not at the high end of the spectrum for offences of this nature.
You moved to Victoria and in 2007 at Robinvale you were dealt with for theft from a shop which was dealt with without conviction. Then in October of 2007, a charge of exceeding .05 and unlicensed driving for which you were sentenced to three months’ imprisonment wholly suspended and also exceeding the prescribed concentration of breath within three hours of driving a vehicle for which you were fined and disqualified from driving.
On 27 April 2009 in the Mildura Magistrates’ Court you were convicted of recklessly causing injury and placed on a Community Based Order for nine months with 75 hours of community work, together with assessment and treatment for alcohol and drug addiction and submitting to medical-psychological-psychiatric assessment and treatment as directed. That related to a drug debt and involved you losing your temper and head butting the other man involved.
Two years had not even passed since that offence occurred and you stand before this Court convicted of the crime of manslaughter, a very serious offence in the criminal calendar and again, one of violence. It must be noted that you have a number of relevant prior convictions which relate to violence and they are factors that must be taken into account by the Court. They do not increase your sentence but they do indicate to the court that you could not be called a person of good character and that your prospects for rehabilitation may be limited.
The circumstances of the offending in this matter require a little by way of background.
The deceased man David Rowe, was in a relationship with a woman by the name of Amanda Fitzmaurice and had been since approximately 1998. They resided in Nangiloc and you were friends with the accused. Although it was not a friendship of long duration, approximately six months, you also knew his partner, Ms Fitzmaurice. They lived in a rural property at Nangiloc and you had, as a result of the request of the deceased, assisted Ms Fitzmaurice in obtaining work as a fruit picker in the area in which you were working in Mildura. You had originally been involved in the construction industry, but at this stage were working at fruit picking in the Mildura area and had been doing that for quite some time.
On 26 January, Ms Fitzmaurice and David Rowe, the deceased, determined to go on a pig hunt, which had been planned for that day, that day being Australia Day. Ms Fitzmaurice took time off work and decided to drive, so that the rest of the group could “have a few beers”. They drove around to your home at about 9.00am, where I understand the shoot was going to be occurring. You were observed to be drinking from a bottle of bourbon. Two friends of yours were present at that time. It would appear that you had consumed a half a bottle of bourbon the night before and the other half this next morning. You followed that with beers.
The pig hunt commenced at approximately 9.30am and at around 11.30am a pig was shot and the animal was loaded into the back of your utility, returning to your home, dropping you there, with David Rowe and Mandy Fitzmaurice continuing on to their home, where they dressed the pig and put it in the freezer. The deceased did some other tasks and then attended at the Nangiloc Tavern, where he purchased a carton of full strength beer and returned home at about 1.15pm for a planned barbeque.
You arrived at the home of the deceased at about 1.00pm with some friends and you were described as, loud and overbearing. When the deceased had seated himself, having obtained a beer, you asked if you could borrow $20 and if he could drive you to the Nangiloc Tavern to buy some ice and also to play pool. He agreed to lend you the $20 but refused to drive you to the tavern. You asked a friend, by the name of Anderson, for more money to purchase bourbon. That was refused and you told Anderson to “fuck off home”. Ms Fitzmaurice, at this point, offered to drive you to the tavern and to drop your friend Anderson back at his car, to try and diffuse the tension in the house.
Unfortunately, all of the persons present in the house got into the utility to go to the tavern. Mr Rowe got into the front passenger seat next to Ms Fitzmaurice, you sat behind him and seated next to you was your friend Anderson, with a man by the name of Murray seated behind Ms Fitzmaurice. You then started to accuse Mr Rowe of not shouting you bourbon on paydays and you got louder and louder. Ms Fitzmaurice drove to your house and dropped off your friend Anderson. Then started driving the three remaining males, including you, towards the Nangiloc Tavern. Brian Rowe asked Ms Fitzmaurice to turn the car around and not go to the tavern, due solely to your conduct, with it appearing that he wanted you to collect your car from his premises and return to your own home.
It would appear that there was some development of animosity between yourself and Mr Rowe over Ms Fitzmaurice, with allegations of jealousy and the like, being bandied about. One of the witnesses, Anderson, stated that there appeared to have been tension between you and the deceased, right from the start of the day, but he was unsure what it was over.
Ms Fitzmaurice, in her statement, indicated that Mr Rowe asked you to calm down on the drive back and said, you should just go home when you had returned to your car. You are, according to the Crown opening, alleged to have said to the deceased, that he was not a true mate and to have challenged him to go “toe to toe” when you reached the deceased’s driveway, to which Mr Rowe responded, “I’m not fighting with you mate, just calm down.”
When the car stopped at the home of Mr Rowe and Ms Fitzmaurice you quickly got out of the car. The deceased gathered his items and got out, you were heard to yell at him, “Come on dickhead”. Then followed the sound of slapping noises and Ms Fitzmaurice yelling out, “No, Gary” or similar words. Ms Fitzmaurice said that she saw you and you had assumed a boxer’s stance. You were shaping up towards the deceased, but he turned and walked away towards the house. Mr Rowe looked over his shoulder, back to where you were, which clearly must not have been a long distance, and you struck him with your right fist, to his left jaw.
Ms Fitzmaurice described David Rowe’s eyes as just popping out of his head, he went completely stiff, spun to his right side and just sort of collapsed onto his stomach and the left side of his head. You stood over the deceased and yelled, “There’s nothing wrong with you, you fucking idiot. You’re just acting. Get up.” You tried to sit the deceased up and starting shaking his head. You were pushed away by Ms Fitzmaurice, who asked you to get her mobile phone. You replied, “What are you going to do, ring the coppers?”
Your behaviour, post the event occurring, was of no assistance to Ms Fitzmaurice, who was striving to try to save her partner. She had commenced cardiopulmonary resuscitation but you clearly hindered her, whether intentionally or otherwise is irrelevant. You got into your car, you drove down the driveway and approximately 100 metres from the road you slammed into a tree, after driving very erratically. The ambulance service arrived approximately 20 minutes after the first call to 000 and Ms Fitzmaurice was still performing CPR on Mr Rowe. You had walked back to the scene after crashing your car and whilst the ambulance officers were there, you resumed yelling at the deceased to get up. You were moved out of the way. A second ambulance arrived and the police shortly after.
You told the police, that the deceased had hit you first and you said to them, that you had had a bit of an argument, but you only “fuckin’ hit him once”. When you were taken to the police station it was apparent to the police that you were unfit, as a result of your alcohol consumption, to be interviewed, this was at 7.00 pm in the evening, these tragic events having occurred at around 1.30. It was not until the next day that you were interviewed at any length. You were co‑operative in your interview with the police, but not entirely truthful. During that interview you initially said, that all you did was push the deceased in the chest with both hands, that he fell and had convulsions. You said, you believed he was putting on an act or playing. You agreed, that you had shaped up towards him, but you denied ever striking Mr Rowe with your fist. You never claimed that the deceased acted in any way aggressively towards you, you just would not admit that you had, in fact, punched him.
It is clear that the deceased died from a blow, from blunt force trauma to the head and neck region. I am satisfied that you did, in fact, land a punch around his left ear and left mandible area. The injuries to the right side of his head are, in all likelihood, caused by the contact of the ground. He died from a traumatic basal subarachnoid haemorrhage with blunt force trauma to the head and neck region. Such haemorrhaging may occur as a result of a blow to the region, causing acute over-stretching of the vertebral artery and subsequent tearing.
It needs to be understood clearly, not just by you, but by all males and even more particularly by those who overindulge in alcohol, drugs or other mind altering substances, that a blow in the form of a punch to someone’s head is exceedingly dangerous. There have been a series of, what are referred to as, one‑punch manslaughters. There has been no intention to take the life of any of the young men who have died and that includes the life of Mr David Rowe. But whether you intended to or not, like so many others before you, you have taken his life, you have killed a man, you have with your own hands taken the life of a man you called your friend.
You are responsible for the death of this 40 year old man. You have left his partner and his family demolished and bereft by grief. Your thoughtless, irresponsible consumption of alcohol, your aggression and your male bravado, caused the loss of this still quite young man. You, indeed, will have to live with that every day of your life. But equally, so will his partner and family. It is commonly said by those who lose a loved one in circumstances such as this, that they have received a life sentence and the reason they say it is because it is true. Nothing, but nothing, will bring back their son, brother, partner, father. He is lost and he is lost to them forever. No sentence I impose, no words I utter or words that you utter, can in any way reduce their pain.
As I indicated, no sentence I impose can or will ease their pain, but what I have to stress is, that the sentence imposed today is not a reflection of the worth of David Rowe - their son, partner or brother. It is the sentence that is right to be imposed, when I have taken into account all of the matters which I am required to take into account, as a matter of law, in determining the appropriate sentence. The worth of David Rowe is immeasurable, no matter what sentence is imposed, that does not change.
I have heard, read and taken into account the victim impact statements made in this case. They are heart rendering. Words are inadequate to describe the loss that these people have suffered. That loss cannot be erased, nothing I or any one else does or says can change that, their pain can only ease with the passing of time. The fact that this man was your friend is something that should cause you even more shame, if that is possible. On this night he tried so hard to walk away from you, he tried so hard to avoid any of this confrontation, but you, in your aggressive alcohol affected state, would not allow that to happen.
I hope for his partner and his family, at some stage in the future, they may turn and think about David, and that the memories of him will bring a smile to their lips, rather than a grimace of pain thinking about the manner of his death. He, like all people, deserves to be remembered with love, affection and pleasure at the joy he brought into their lives, rather than just the terrible method of his leaving.
I also do have to take into account your personal circumstances and history. You were born on 4 May 1972 and you were aged 38 at the time of the offence. You are now 39. You were born in Penrith in New South Wales, your mother is now in her sixties and your father is in his seventies. Your parents separated when you were aged five, with your father being described as a violent alcoholic, who physically abused his wife. Your mother later developed a new relationship with your stepfather who you described as a caring, supportive man, involved with the family. He worked in labouring areas and, as a result, you had a relatively itinerant lifestyle, having attended some 17 different schools over your younger years. Your stepfather died of cancer when you were 17 years of age and you left home not long after that occurrence. Your mother has a new partner and lives near Lakes Entrance but she has suffered a number of strokes. You have two older half‑sisters from your mother’s previous relationship. One is aged 42, the other 45. Both are married with children. Your mother was present in court to support you at the time of the plea, as was your son and your partner of many years.
As indicated, you attended numerous schools over the time of your stepfather’s work involvement, in bridge construction. You attended school up to Year 9 but did not complete Year 9, having sustained a fracture to your left leg, requiring you to be off school for three months. You did not return to complete Year 9 and that was the end of your schooling. You have, whilst in prison, firstly in New South Wales, completed certificates in warehousing and stocktaking, together with certificates in first aid, occupational health and safety, and, whilst at Melbourne Assessment Prison, meal preparation training, and courses relating to coping with change .
Your working history is, that you have worked predominantly in labouring work, firstly in the construction industry in fixing and formwork, as well as becoming a Grade 5 level sawsman. You had, of more recent time, been involved in seasonal work, travelling to different locations according to the seasonal nature. By 2007, you had determined to settle in Mildura and you obtained a house at Nangiloc and employment with Collette & Sons, where you were until the time you were placed on remand. You had been working in the fruit picking and vine planting area, together with doing various labouring jobs around that location. I have three references, one from your employer Mark Collette, and another from a friend Peter Murdoch, the third from your landlord, all from Nangiloc, who refer to your recent work history, together with your friendly nature. Mr Murdoch in particular refers to your lack of aggression.
You had had a number of relationships, none of any great length, except an earlier relationship from which there was a child, a son, who is now 19 years of age and in the final year of his spray painting apprenticeship in New South Wales. He has a half‑brother and half‑sister. It would appear that you do have a reasonable relationship with your son and I gather, that you have some form of relationship with the rest of your family. Mr Murdoch refers to it in his reference as
“Gary has a warm family in Sydney and I have met Gary’s 19 year old son. Gary is very family orientated and loves his son. Father and son are very close.”
You have a current partner, Ms Joanne Camilleri, who produced a reference for you which was tendered as part of exhibit 7. Although counsel did no more than tender the document, it would appear that you and Ms Camilleri had been together for, some 10 years as partners and some four years prior to that as travelling companions. She visits you fortnightly and apart from one visit by your mother, would appear to be your only visitor and she remains supportive of you. She also came to court to support you during the plea.
The biggest problem you have in your life relates to your inability to cease the use of drugs and alcohol. As indicated earlier, you had an injury to your left leg when you were aged 14, sustaining what is described as a shatter fracture to the lower left leg as a result of a fall, which took three months’ convalescence. You began smoking cannabis at 15. By 17 you had a daily habit, which continued over the years, but gradually decreased. Unfortunately, your use of amphetamine correspondingly increased. Your abuse of alcohol, started in your late teens and continued through until your early twenties and was only abandoned, when you became involved with amphetamines on a very regular intravenous basis. I was informed that after your release from prison in 2002, in relation to the malicious wounding, your use of amphetamine decreased continuously, until you ceased consuming it at all in 2007. Unfortunately, when you ceased using amphetamine, your alcohol consumption again increased significantly and in 2009, you entered de Paul House for detoxification, over a ten day in‑house stay and was prescribed Naltraxone. That assisted you to be abstinent from alcohol for six months. That appears to me, to coincide with the time that you were placed on a Community Based Order with conditions for alcohol treatment. After that time, you would on occasions drink to considerable excess, such as you did on this occasion. At other times you drank moderately. Your consumption of alcohol does nothing to excuse or justify your behaviour. It may go some way to explaining that behaviour, but not in a way that reflects anything but discredit upon you.
You have a full scale IQ of 95, being entirely unremarkable. I have a report from Bernard Healey which indicates that you have some aspects of depression, anxiety and sociopathic trend. I would be surprised if you did not have depressive symptoms together with some anxiety, in view of the circumstances in which you currently find yourself.
You have expressed to Mr Healey remorse for what occurred on this night for what you did to your friend David. You have expressed the desire to turn back time and somehow alter the course of these appalling and tragic events. You admitted to him that you had consumed more alcohol than usual. You consumed both bourbon and beer, before going out hunting. You then drank more beer after that, going for a swim, then going back to David Rowe’s house for a barbeque and drinking more alcohol there. It is clear that you cannot afford to drink, not if the aggression, anger and temper that you displayed this day is the result. This offence has cost you dearly. But nowhere near as dearly as it has cost the loved ones of David Rowe.
Your plea was offered at a very early stage. You have not put any of the witnesses through the trauma of giving evidence and you have not in any way sought to prolong this matter, but to assist in its early resolution. That is significant and is indicative of the remorse, I accept, you feel in relation to these matters. In a recent case of Sherna v R delivered 23 August 2011, [1]Ashley JA stated
In the case of a guilty plea, the extent of any discount will be affected by the judge’s determination whether the plea simply has utilitarian value, or whether it also bespeaks remorse, genuine contrition, acceptance of responsibility and willingness to facilitate the course of justice.
[1][2011] VSCA 242 at para 18
You have written a letter which is exhibit 6 on the plea. It is addressed to the presiding Judge, but it’s contents are really intended for the family and loved one’s of David Rowe. In it you express your remorse and regret for what you have done, you offer no excuses and accept all blame for this tragic death. Rightly so, but it is to be acknowledged that it is unusual for a person in your position to accept the blame and responsibility so wholeheartedly, and openly. It is consistent with my findings relating to your remorse, and I act upon and do accept, that you are remorseful for causing the death of David Rowe.
I have to balance your personal circumstances together with all of the other factors involved in sentencing: your plea of guilty, the remorse that you have indicated, the community’s need for a just and appropriate sentence, punishment, general deterrence, specific deterrence to you particularly in light of your prior convictions and other factors, and arrive at an appropriate sentence. Whilst I accept that you are highly motivated at this stage to never drink again or to never use violence again, your history belies that. I can only hope that to be the situation, but I am somewhat pessimistic about your prospects of rehabilitation, but you are not beyond hope, and you may ultimately become a contributing member of our community, with a lot of effort. You have the support of your partner and your family to assist you with that.
In light of all of the factors to which I have had reference it is my view that the appropriate sentence, is a sentence of ten years’ imprisonment. I direct that you are to be imprisoned for a period of ten years, I further direct that you are to serve seven years’ imprisonment before becoming eligible for parole.
Pursuant to s 6AAA, I declare that the sentence I would have imposed but for your plea of guilty would have been a sentence of 12 years with a minimum of nine. I declare that you have spent 211 days in pre‑sentence detention and such be noted in the records of the Court.
Application for retention of forensic sample Sect 464 ZFB (1) is granted.
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