JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2020 & 11 January 2021
DATE OF SENTENCE:	26 February 2021
CASE MAY BE CITED AS:	R v Lucas
MEDIUM NEUTRAL CITATION:	[2021] VSC 81

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CRIMINAL LAW — Sentence — Manslaughter — Incident on CCTV — Accused punched deceased to face, twice — Deceased rendered unconscious by second blow, then collapsed onto path — Deceased unable to be revived — Injuries included scalp laceration to back of head and bruising of jaw but no skull fracture, intracranial haemorrhage or traumatic brain injury — Instead, cause of death described as “complications of blunt craniofacial injury in … setting of alcohol intoxication, in a man with cardiomegaly and … class III obesity” — Contested plea on whether “coward’s punch” provisions engaged — Whether punch(es) causing death “by itself [themselves] cause[d] … injury to … head” — Whether “[deceased] … not expecting to be punched” — Whether accused “knew … [deceased] … not expecting, or … probably not expecting, to be punched” — Coward’s punch provisions not engaged — Plea of guilty — Remorse — Prior convictions for assault, but mostly stale — Deprived and criminally-oriented early life followed by long period of impressive rehabilitation — Strong work history — Whether cognitive afflictions impact on moral culpability and weight to general deterrence — Reasonable to good prospects of rehabilitation — COVID-19 restrictions in prison — Current sentencing practices — Parsimony — Sentence of nine years’ gaol with non-parole period of six years — But for plea of guilty, sentence of eleven years’ gaol with non-parole period of eight years — Crimes Act 1958 (Vic), ss 4A, 5 & 15; Sentencing Act 1991 (Vic), ss 5, 6AAA, 9A, 9C & 10A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Lewis	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Mr S Tovey	Theo Magazis & Associates

HIS HONOUR:

Overview

Just before midnight on 24 March 1944, British tail-gunner Flight Sergeant Nicholas Alkemade jumped from a spiralling Lancaster, on its return from a mission to Berlin, at an altitude of 5,500 metres. He had no parachute. A Junkers’ guns had turned the bomber into a fireball and destroyed the last parachute on board. His uniform ablaze, the twenty-one-year-old rejected death by incineration. He chose instead to backflip out of his turret into the night sky and contemplate his last moments alive while gazing back up at the stars. As he hurtled towards the earth at over 200 kph, knowing that death was near, his ship exploded into smithereens.

Three hours later, the young airman opened his eyes. He was lying face-up — still looking at the stars — on a bed of snow on the floor of a Ruhr pine forest. It was not a dream. He was alive. Incredibly, the flexible pine branches and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lucas

Details

AGLC: R v Lucas [2021] VSC 81
Case: [2021] VSC 81
Decision Date: 26 February 2021

CaseChat Overview and Summary

The appellant, Mr. Lucas, was convicted of manslaughter following an incident where he punched the deceased, leading to the deceased's death. The incident was captured on CCTV, which showed Mr. Lucas punching the deceased twice to the face, resulting in the deceased being rendered unconscious and subsequently collapsing onto a path where he could not be revived. The deceased's death was attributed to complications from blunt craniofacial injuries in the context of alcohol intoxication, along with pre-existing conditions including cardiomegaly and class III obesity. Mr. Lucas pleaded guilty to manslaughter, contending that the so-called "coward's punch" provisions did not apply to his actions.

The primary legal issues before the court were whether the punches caused the fatal injury to the deceased's head, whether the deceased was not expecting to be punched, and whether Mr. Lucas knew or ought to have known that the deceased was not expecting, or probably not expecting, to be punched. The court found that the "coward’s punch" provisions were not applicable. It also noted that Mr. Lucas had shown remorse, had prior convictions mostly for assault but largely stale, and had undergone significant rehabilitation following a deprived and criminally-oriented early life. The court considered Mr. Lucas' cognitive afflictions in assessing his moral culpability and the weight to be given to general deterrence. It concluded that Mr. Lucas had reasonable to good prospects of rehabilitation. The court also took into account COVID-19 restrictions in prison, current sentencing practices, and the principle of parsimony in arriving at a sentence of nine years’ gaol with a non-parole period of six years. Without the plea of guilty, the court would have imposed a sentence of eleven years’ gaol with a non-parole period of eight years.

The court's decision hinged on a comprehensive assessment of the circumstances of the incident, the applicable legal criteria, and the appellant's background and prospects for rehabilitation. The court's analysis of the "coward's punch" provisions and the elements required to engage those provisions was pivotal in determining the appropriate charge and sentence. The court's consideration of the appellant's rehabilitation and cognitive afflictions also played a significant role in shaping the sentence. The final orders of the court reflect a balanced approach, taking into account the severity of the offence, the appellant's plea of guilty, and his potential for rehabilitation.

Orders