| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0150
| Between: | |
| THE QUEEN | |
| -and- | |
| SHANE ANDREW LUCAS | Accused |
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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…
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- AGLC
- R v Lucas [2021] VSC 81
- Case
- [2021] VSC 81
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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