R v Kaplan (Sentence)

[2005] VSC 372

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1532 of 2004

THE QUEEN

v

NATAN KAPLAN

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	14-16, 20-24 June, 19 August 2005
DATE OF SENTENCE:	22 September 2005
CASE MAY BE CITED AS:	R v Natan Kaplan
MEDIUM NEUTRAL CITATION:	[2005] VSC 372

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Criminal Law - Sentencing – Manslaughter – Argument outside night club - Single punch to chin – death resulting from head striking pavement – 5 years imprisonment – 3 years non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Williams	Office of Public Prosecutions
For the Accused	Mr T. Danos (Trial) and Mr P. Dunn Q.C. (Plea)	Dean Cole & Associates

HIS HONOUR:

1. Natan Kaplan.  You have been found guilty by a jury of manslaughter.  In February 2004, you killed Benjamin Smith.  He died as a result of head injuries which he sustained when his head struck the footpath in Church Street, Brighton after he had been punched on the chin by you.  You threw that one punch at around 12.40 a.m. on 13 February.  You and he were then a short distance from the entrance to the Mint night club.   You had earlier been in the night club.

1. Benjamin Smith was not known to you.  A short time before you hit him, he had been denied entrance to the night club by a security guard, a Phillip Smith.  Phillip Smith was known to you from school days.  You had come to know him better because you also worked as a security guard at other venues.  On this night, you were off duty.  In dealing as you did with Benjamin Smith, part of your motivation was a misguided sense of loyalty to Phillip Smith as a fellow security guard.  Indeed, a short time before Benjamin Smith had come to the night club, you had assisted Phillip Smith in his security work. You had helped Phillip Smith to resolve an argument between patrons that might otherwise have got out of hand.

1. There were at least two reasons why Phillip Smith had denied Benjamin Smith entrance to the night club.  One was that Benjamin Smith had had too much to drink, his state of intoxication was obvious.  The other was that Benjamin and Phillip Smith had their personal differences.  The father of Phillip Smith was also the adoptive father of Benjamin Smith.  On being denied entry to the night club by Phillip Smith, Benjamin Smith provoked Phillip Smith with a taunt about their father’s death.  That led to Phillip Smith kicking Benjamin Smith.  That was followed by much yelling between the two as Benjamin Smith walked away.  You witnessed that yelling.  You then chose to intervene, by acting gratuitously where no action was called for.  It was a misguided choice. 

1. You walked after Benjamin Smith.  By then, he was no threat to anyone.  He was leaving the scene.  You walked through the crowd outside the night club and the neighbouring shops along Church Street to catch up with him.  When you got to him, you called to him. The call was calculated to get him to turn around.  When he turned, his arms were by his sides.  You hit him forcefully to the chin. 

1. You sought to explain to the jury why you chose to intervene, and why you punched Benjamin Smith.  In more than one respect, your explanation was at odds with the evidence of more than a dozen eye-witnesses.  On their accounts, there was no need for you to intervene.  There was no need for you to hit Benjamin Smith as you did.  They told the court of hearing two sickening sounds. The first was of your punch hitting Benjamin Smith.  The second was of his head hitting the pavement.  You must have heard those sounds.  You showed no indication of regret. You turned and strode off.  As you did, you chose to make inappropriate remarks to witnesses nearby. 

1. I accept that this is a manslaughter which is not towards the upper end of the scale of seriousness.  You were acting relatively spontaneously.  You had no weapon. You struck only one blow.  What occurred took no more than a few seconds.  On the other hand, you were a fit and sober man.  You were under no threat.  Benjamin Smith was an unsuspecting, vulnerable, intoxicated victim.  He was punched when he was walking away from trouble.  This was not just an unlucky punch in the course of a spontaneous fight.

1. I have read carefully the victim impact statement placed before the court. It has been written by the mother of Matthew, aged 10, the son of Benjamin Smith.  It is clear from what she has written that she and Matthew have suffered grievously from the death of Benjamin Smith and will continue to do so.

1. There are a number of aspects to your background that suggest that you are likely to be a good rehabilitation prospect.  You are now 23 years of age. In February 2004, you were 21.  You were born in Lithuania.  You came to Australia when still a young child.  You have been raised by your mother.  You have helped her raise your half-sister.  You have helped your mother in other ways.  You have a good study and work record.  You married earlier this year.  You have a very young daughter.  I have read the many letters commending your good qualities.  You have good supports in the community.

1. You have had one prior appearance before the courts which I treat as immaterial.  You have no prior history of violence. 

1. I am prepared to accept that there is some remorse.  I do so, despite some earlier contrary indications, in the light of the evidence of your mother and the contents of some of the letters.

1. Your youth is an important mitigating consideration, to be allowed for both as to the head sentence and as to the non-parole period. 

1. I have reviewed the cases discussed on the hearing of the plea.  I have also reviewed a number of English cases, in part because those cases reflect the high incidence of single punch deaths outside drinking venues, and in part because they illustrate the need to have close regard to the different facts of each case.[1]

   [1]I refer to the cases of Crimp, Harrison, and Kime referred to in Attorney General’s Reference No.100 of 2001 (Welch) [2002] 2 Cr App R (S) 81 (p 365), and the later cases of Cheetham and Baker [2004] 2 Cr App R (S) 53 (p 278), Lumsden [2005] 2 Cr App R (S) 27 (p 151) and Binstead [2005] 2 Cr App R (S) 62 (p 372).

1. I have signed the forensic sample order, there being good reasons and no objection to my doing so. 

1. I impose a sentence of imprisonment of five years.  I fix a non-parole period of three years.  I declare the period of pre-sentence detention to be 103 days to today.   I direct that that be entered in the court records.