R v Lee
[2017] VSC 678
•10 November 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0072
| THE QUEEN | |
| v | |
| ANDREW WILLIAM LEE | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 October 2017 |
DATE OF SENTENCE: | 10 November 2017 |
CASE MAY BE CITED AS: | R v Lee |
MEDIUM NEUTRAL CITATION: | [2017] VSC 678 |
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CRIMINAL LAW – Sentence – Plea of guilty – Manslaughter – Affray at hotel – Deceased died as a result of a single punch from the accused – Deceased attempting to remove friend from the affray when hit by the accused – History of proceedings - Accused originally charged with murder - Accused of previously good character – Remorse – Good prospects of rehabilitation – General and specific deterrence – Sentencing Act 1991 ss 9A & 9C – Principle of legality.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kissane QC and Mr J McWilliams | Office of Public Prosecutions |
| For the Accused | Mr P Morrissey SC and Mr M Gumbleton | Garde-Wilson Lawyers |
HIS HONOUR:
Andrew William Lee, on 8 September 2017 in this Court, you pleaded guilty to one charge of manslaughter. That charge related to events which occurred on 16 April 2016 at the Windy Mile Hotel in Diamond Creek. At some time after 11:00pm that night, and during the course of an affray involving a number of people at the hotel, you threw a punch which struck Patrick Cronin to the right side of the head. That punch caused a fracture to him which in turn caused an unsurvivable brain injury and ultimately resulted in his death the following day, 17 April 2016. You and Patrick Cronin were unknown to each other and there was no hostility between you on that night.
Your plea of guilty to manslaughter occurred a day after your trial had commenced. A jury had been empanelled and both counsel had opened the case to that jury. The Court and the parties had also undertaken a view of the scene but the evidence had not commenced to be called. After your plea of guilty I continued your bail but on 2 October 2017 you presented yourself to the Court requesting that your bail be terminated. I revoked the order and you went into custody.
During the plea proceedings on 3 October 2017, I heard an opening on behalf of the prosecution from Mr Kissane QC who, with Mr McWilliams, appeared for the Director, as well as submissions on your behalf as to sentence from Mr Morrissey SC, who appeared with Mr Gumbleton.
The maximum penalty for manslaughter is 20 years’ imprisonment. It is now my responsibility to sentence you for this offence.
Circumstances of offending
On the afternoon of Saturday 16 April 2016, the deceased man Patrick Cronin played football for the Lower Plenty Football Club. That game commenced at 2.00pm and, as the prosecutor indicated, he did not sustain any injuries during the match and went home afterwards.
At about 6.00pm, the deceased told his parents that he was going to the home of a friend where he was planning to spend the evening. He and several other friends arrived at the home of Ashton Johanssen at about 7.00pm and remained there until about 9.30pm. They had a meal and consumed some alcohol over the 2½ hours spent at those premises.
At 9.30pm, the group of five men decided to walk from Johanssen’s house to the Windy Mile Hotel, a distance of about 800 metres. They got there at about 9.45pm and met with another friend, Josh Davis, who played rugby for the Eltham Rugby Club. There were other teammates from the Eltham Rugby Club also at the hotel. During the time that followed, Patrick Cronin and his friends occupied a position at the bar and he consumed two drinks of vodka and raspberry. The hotel was equipped with a number of internal and external closed circuit television cameras (CCTV) which reveal what occurred on that evening.
According to the evidence, you spent most of the day at the Diamond Creek Football Club with which your family had a connection. You left that area at about 5.30pm with a group of friends and family members to go to the Shoppingtown Hotel in Doncaster. After going to some entertainment, you left the Shoppingtown Hotel with your friends and travelled to the Windy Mile Hotel. You and your friends arrived at about 10.21pm and, shortly afterwards, you entered the hotel through the door on Main Street, which opens to the restaurant area. You ordered drinks and remained at the bar, drinking and socialising with your friends, many of whom were also connected with the Diamond Creek Football Club.
At approximately 11.00pm, a fight commenced outside the hotel in the area of the corner of Main and Hyde Streets and, shortly after that happened, Patrick Cronin left his position near the bar to walk outside where the fight was already under way. The CCTV footage records him taking hold of his friend, Anthony Hopkins, and trying to help him or persuade him to leave the conflict.
At 11.04pm, you walked through the bar, out of the main doors and took up a position facing towards the hotel front doors. You stood there observing the fight that was going on and you watched for about a minute before you approached Patrick Cronin from his right side. Your approach was out of his field of vision because at the time he was not facing you, being involved in attempting to assist his friend, Anthony Hopkins, and remove him from the fight.
It is agreed between the parties that Patrick Cronin took no aggressive part in the fight and instead was trying to assist his friends by removing them from it. He had taken hold of his friend, Anthony Hopkins, who was involved in a struggle with others, including a man named Burns.
In a fateful decision, you decided to intervene. You moved forward toward Patrick Cronin and Anthony Hopkins. The CCTV footage shows you then throwing three punches. The first of those was aimed at Hopkins and struck him on the right side of the head. The second punch was also thrown in that direction but struck Patrick Cronin to the right hand side of his head in the vicinity of his right ear. It was obviously a hard punch and the force of it sent Patrick Cronin stumbling sideways. You then drew back and threw a third punch which, it would appear, did not connect with anyone.
Those actions of yours resulted in you being further engaged in the fight and you continued to participate in it with other patrons while Patrick Cronin continued to remove Hopkins from the area. Patrick Cronin and Hopkins are shown on the CCTV footage walking away from the fight in the area of the main doors. Patrick Cronin also assisted Josh Davis to move away from the area of aggression. Finally, he further assisted Jesse Matthews away from the area of the fight. Patrick Cronin told Matthews that he had been punched to the head and on the CCTV footage he can be seen motioning to his right temple with his right fist. He can also be seen rubbing the right hand side of his head. Anthony Hopkins, Jesse Matthews and Ashton Johannsen have each filed victim impact statements.
At around this time, the police arrived and the fighting ceased with the patrons then beginning to disperse.
Patrick Cronin again explained to his friend, Fraser Delbridge, that he had been struck to the right hand temple area during the conflict.
Patrick Cronin and his friends left the hotel and returned to the Johanssen house at about 11.30pm and he immediately complained of not feeling well and having a headache. He said he was going to take some Panadol and go to bed.
By 12.30pm, his condition had deteriorated significantly and he was found by Hopkins vomiting in the toilet. He said he thought he had concussion. As a result of his condition Patrick Cronin’s mother was contacted at about 1.00am and she came to collect him. However, his condition continued to further deteriorate, and by 1.15am it was obviously necessary that an ambulance be called because he had had a seizure and was convulsing. By the time the ambulance arrived, or shortly thereafter, Patrick Cronin was unconscious.
The MICA paramedics who staffed the ambulance determined that Patrick Cronin had suffered a traumatic brain injury. His condition was stabilised for the journey to the Royal Melbourne Hospital, including providing the medical intervention by then required for him to be able to breathe.
After he had arrived at the hospital, it was determined by medical staff that he had suffered a significant haemorrhage on the right side of his brain and that his injury was not survivable. Tragically, Patrick Cronin died at 8.25pm on Sunday 17 April 2016. The pathologist who conducted the subsequent post mortem described his condition as one of an ‘acute extra-dural haemorrhage following blunt force trauma’.
The post mortem indicated a single injury to the right side of Patrick Cronin’s head which was comprised of a two centimetre hairline fracture to the right skull which you had caused. There was an associated lacerated middle meningeal artery at the site of the fracture. It was the lacerated artery that produced the haemorrhage.
The Proceedings
Because it has been a matter of some public significance, it is appropriate to briefly trace the history of this case.
Not long after the incident at the Windy Mile hotel on 16 April 2016, the death of Patrick Cronin the following day and after the public circulation of your image, you presented yourself to Victoria Police. You were arrested and charged with the murder of Patrick Cronin and taken into custody on 20 April 2016.
On 16 June 2016 an application for bail was made in this Court on your behalf before Emerton J. On 20 June 2016 you were granted bail. Such an outcome is unusual in the case of a charge of murder. Her Honour concluded that there were exceptional circumstances which justified an order for bail in your case.[1] Her conclusion was reached because of her view of the weakness of the prosecution case against you on the charge of murder with particular reference to proving an intention to kill or cause really serious injury given the circumstances of this case.[2] Her Honour was undoubtedly correct but notwithstanding such observations from an experienced judge of this Court the charge of murder remained against you for almost another year.
[1]See Bail Act1977 (Vic) s 13(2).
[2]IN THE MATTER of an Application for Bail by Andrew William Lee [2016] VSC 343.
In May 2017 the committal proceedings commenced and on the first day of that hearing it was finally announced by the prosecutor that the charge of murder against you would not proceed. That decision was the subject of some public criticism. I respectfully agree with the views expressed by Emerton J in your bail application. In my opinion this is not a case where, on the available evidence, a charge of murder could ever have been sustained against you. Clearly the Director of Public Prosecutions recognised that was so, albeit somewhat belatedly. You could not be criticised for not having pleaded guilty to murder. The charge having been withdrawn, at the conclusion of the committal you were committed for trial in this Court on the charge of manslaughter.
Those matters are made the worse by the fact that your committal hearing had taken more than a year to come on for hearing. That delay seems to me to be most unacceptable which not only affected you but no doubt caused considerable stress to the family and friends of Patrick Cronin.
Having been committed for trial in May 2017, your trial on the charge of manslaughter was listed for 6 September 2017 on the basis that you would plead not guilty. As I have already noted, the trial commenced on that date. There had been a pre-trial application concerning the notice filed by the Director of Public Prosecutions pursuant to s 9A of the Sentencing Act 1991. That notice was filed for the purpose of foreshadowing an application on your sentence that if certain matters were proved beyond reasonable doubt about your conduct and its effect, the Court would then be obliged to impose a sentence on you which incorporated a minimum term before you would become eligible to apply for release on parole. That mandatory minimum sentence would have been ten years imprisonment. An application made on your behalf concerning the argued unfairness of that notice was refused by me and the trial commenced before the jury on 6 September 2017.
After the jury had been empanelled, openings presented and a view of the scene conducted, at your request you were re-arraigned in the jury’s presence and your plea of guilty was entered on 8 September 2017. Shortly following that the prosecutor filed a revocation of the notice I have just been referring to with the effect that the mandatory sentence provisions earlier relied on no longer applied in your case. You are therefore to be sentenced in accordance with usual sentencing principles applying to manslaughter cases generally.
Victim impact statements
In the course of the proceedings on 3 October 2017, I received a total of 93 victim impact statements. It is not practical to summarise all of those statements but they came from a broad range of family, friends and associates of Patrick Cronin including some very young people. The effect of Patrick Cronin’s death on a very large number of people in the area in which he and his family lived, was educated and played football, is profound. Even the Catholic priest, whose professional and religious calling requires him to provide pastoral care at times of stress, was significantly affected.
Importantly, in many of the statements the particular individuals reflect on their own situation when going out socially and the dramatic revelation of the alarming ease with which a tragedy like this can happen, particularly when it happens to someone who was not behaving in any manner aggressively. The establishment of groups like the Patrick Cronin Foundation with its message of awareness and education is a valuable public vehicle to reduce that risk.
The victim impact statements also combine to underline the extraordinary affection and esteem in which Patrick Cronin was held by everyone who knew him, and that is a very large collection of people.
Four of the statements were read aloud by their deponents. Those were the statements of Emma Cronin, Lucas Cronin, Robyn Cronin and Matt Cronin. They are respectively the sister, brother, mother and father of Patrick Cronin. Those four statements, coupled with the other 89 that were produced, particularly highlight in graphic terms the loss, suffering and grief that has been caused as a result of your action in striking Patrick Cronin to the head and causing his death. I know you understand and accept that. It is tragic that on any view, the one person in this entire incident who was innocent of any wrongdoing during the fracas at the hotel was Patrick Cronin. That is asserted by the prosecution and accepted on your behalf.
Those in the position of the family and friends of Patrick Cronin will have to carry the effects of his loss for the rest of their lives in varying levels of intensity. Those effects will be particularly vivid in the case of his family. Among the collection of matters I am required by legal principle to consider in imposing sentence, I have taken the victim impact statements, and the nature of the effect they describe, into account in determining the sentence I should impose on you.
The High Court of Australia recently observed that the imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case. That process “…requires the sentencing judge to identify and balance all relevant factors – factors that may point in different, conflicting and contradictory directions – and to make a judgment as to the appropriate sentence in the circumstances of the case”.[3] That is what I will do in your case.
[3]DPP v Dalgliesh [2017] HCA 41.
There is obviously nothing that the Court can do or say which will rectify the hurt that the Cronin family and friends have felt and continue to feel. Indeed, such is not the Court’s role. I acknowledge the effect of this crime on all of these people and all I would add is the hope, in the interests of at least a partial rehabilitation and recovery of the family and the wider community from this tragedy, that the occasionally expressed feelings of hate and despair will eventually abate, hopefully in favour of some form of forgiveness. In the long term, hate is inherently corrosive for those who feel it. Many people make mistakes and sometimes they make grievous errors of judgment for which they must pay a price, as you must. But they are still people.
Personal circumstances
You were born on 21 February 1983 and therefore are now 34 years of age. Your upbringing was in Melbourne and you are the youngest child in the family, with one older brother and one older sister. You have a work history which commenced after you left school. In fact you ceased study at Year 11 and, after that, completed a four year shop-fitting apprenticeship. You have also worked as a rigger and hold the relevant licences to enable you to pursue that particular occupation.
Your parents have been married for 40 years and your family continue to support you. They have written to the Court attesting to your character and declaring their support for you. You had a positive childhood and a close family, and you were supported throughout your childhood and adolescence. I have also received written statements in support of you from other members of your family. You have a social network of friends, and many of your friends have also supported you and provided references for the purpose of the proceedings before me. You are held in high regard by a large number of people. Many of them attended for the Court hearing on 3 October 2017 to demonstrate that support.
One of the activities you became interested in was the martial art of Muoy Thai. You had trained for some period of time and achieved some rank of proficiency in that martial art. The significant point that needs to be made about that activity is that in your training you were taught that such skill as you had was only to be used in self-defence and not for the purpose of behaving aggressively. On the night of 16 April 2016, it is significant you knew better but failed to heed that instruction which is an important part of legitimate martial arts training.
As to your mental state I have been provided with a neuropsychological report from Mr Matthew Staios, who is a consultant psychologist. That report is useful in the sense that it identifies the basis of your remorse for what you have done in this case, and gives me some indication of your prospects for the future. The report supports the conclusion that you are remorseful for what you have done and that you show significant empathy in relation to the family of Patrick Cronin for your actions. Mr Staios has diagnosed depression, but as Mr Morrissey accepted in the course of argument, that condition is situational in that it is a consequence of the circumstances you now find yourself in.
At age 34, you have no previous convictions of any kind, and your time in custody in relation to this matter is the first time you have been in custody. As I have already mentioned, there are a large number of written references which have been provided for the purpose of supporting you. The support they offer you now is important and will continue to be so upon your release from custody. Considering your prospects for the future, they do seem very positive.
Twelve years ago, you met your wife to be, Candice, and three years ago, you and she married. That marriage has produced a three year old son, Angus. Ten years ago, you and your wife purchased a property and it would appear from the evidence that your relationship with your wife is stable and supportive. I am told that as a result of your incarceration, it is necessary for your family home to be rented for the duration of your imprisonment. That has obviously been an upheaval for your wife and for your child.
Your wife gave evidence during the course of the plea. It is clear that she will continue to support you whilst you are in custody and when you are released and that your marriage remains strong. She is herself studying at the RMIT and will be working throughout the time that you are in custody. Prior to this matter, you were a person of good character, having come from a family who have always supported you and will apparently continue to do so. In my opinion, your prospects for rehabilitation and for living a life compliant with the law upon your release are good.
Conclusion
In relation to the offence itself, I have examined the CCTV footage which was played in Court a number of times and I have also examined it in my chambers. As Mr Kissane finally conceded on behalf of the prosecution, I could not be satisfied beyond reasonable doubt that the blow struck by you to Patrick Cronin was intended by you for him. It was put on your behalf that your interest in this conflict was in defending your friend Burns. Nonetheless, your actions are to be condemned because, apart from anything else, you intervened when there was no need to do so. Mr Morrissey on your behalf conceded as much. Further, and unlike Patrick Cronin, your intervention was violent and caused a tragedy.
It is not to your credit that you intended to hit Hopkins and succeeded. You should have remained standing and watching, or preferably followed the example of Patrick Cronin and done what you could have to prevent the fight from continuing. However, that said, it does appear that the blow from you which struck Patrick Cronin was in fact not intended for him as far as you were concerned and I will sentence you on that basis. That notwithstanding, it is significant that the one person who suffered the terrible consequences of this incident was the person whose behaviour featured no aggression whatsoever. It must have been obvious to you because you had watched for a period of time that Patrick Cronin’s actions were to defuse the situation rather than contribute any form of aggression.
On any view you acted violently and that violent act had a dreadful consequence. The nature and gravity of your offending was significant. However, it is not suggested that on that night you had entered the hotel with any intention of engaging in physical violence. Your actions were spontaneous and occurred over a few seconds during which you made a terrible mistake. As I understand it, there is no explanation for your spontaneous conduct which is connected with alcohol or drugs.
I accept that there is a justifiable community concern about incidents like this and the propensity of young men to become violent without realising the gravity of the consequences. Apart from the role of general deterrence as a sentencing consideration, public education and awareness, which is already well underway, plays an important part in curbing the frequency of such incidents.
In the course of his submissions, the prosecutor Mr Kissane urged that though it did not apply in this case, I should regard s 9C of the Sentencing Act 1991 as a “guide post” for the purpose of sentencing you. The implicit argument behind his submission is that the “guide post” should have an upward effect on the sentence to be imposed on you. I reject the prosecutor’s submission. As the High Court has made clear, the principle of legality means that “..courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose.”[4]
[4]Gleeson CJ in Plaintiff S157/2002 v Commonwealth [2003] HCA 2 para [30].
The provisions of s 9C of the Sentencing Act 1991 either apply or they do not. They only apply if certain prerequisites are complied with and they have not been in this case. Ultimately the prosecutor accepted that to be so.
As to your plea of guilty, it was made at a late stage in the legal process. In some respects that is the fault of the process itself. However responsible you felt, you could never have been expected to plead guilty to the charge of murder. However your trial was to be on the lesser charge of manslaughter and it having started, your initial position was that you were not guilty and Mr Morrissey responded to the Crown’s opening on that basis when addressing the jury. Your plea of guilty to the charge of manslaughter came after it was clear that the prosecution would not be contending that the mandatory sentence provisions would apply to you. However, late as it was, your plea of guilty has avoided the need for a trial and the trauma connected with it, particularly for the members of the Cronin family. In addition I am satisfied that that you are genuinely remorseful for what you have done and, in part at least, your plea of guilty is a reflection of that and a willingness to accept responsibility for your actions.
As is the case with Patrick Cronin you come from a close and stable family. As to your previous character, you are without a prior criminal history and your future on your release from custody looks positive. Your prospects for rehabilitation are something I must consider and they are good. In my opinion you already have well developed insight into what you did. The way you have conducted yourself since this incident demonstrates that you clearly understand the gravity of your actions. I do not regard you as someone from whom the community now needs to be protected. However, sentencing considerations of specific and general deterrence remain important in this case.
In all the circumstance you will be sentenced to be imprisoned for a period of eight years. I fix a period of five years to be served by you before you are eligible to apply for release on parole.
Your period of pre-sentence detention is 97 days including this day and I direct that be entered in the records of the Court.
Pursuant to s 6AAA of the Sentencing Act1991, I declare that had you not pleaded guilty to this charge the sentence I would have imposed on you would have been a period of 10 years with a period to have been served before eligibility for parole of seven years.
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